[2015] FWC 1481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Gray
v
Brown Engineering and Construction P/L
(U2014/14747)

COMMISSIONER SIMPSON

BRISBANE, 21 APRIL 2015

Application for relief from unfair dismissal - Despite procedural flaws termination not unfair - Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (the Act) by Mr Mark Gray (the Applicant) who alleges that the termination of his employment with Brown Engineering and Construction Pty Ltd T/A Brown Steel (the Respondent) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on 3 November 2014 and a conciliation conference was conducted on 27 November 2014 which was not successful in resolving the matter. The matter was listed for arbitration on 12 & 13 March 2015 in Brisbane. The Applicant was represented by Ms M J Thorley of HKT Lawyers, and the Respondent was represented by Mr J C Dwyer of Counsel instructed by Thynne and Macartney Lawyers.

[3] The Applicant filed three statements and called three witnesses, himself 1, Mr Michael Boniface2 who worked with the Applicant from August 2012 until his employment was terminated on 16 October 2014, and Mr Justin Carlile3, who worked as a casual employee of the Respondent from 27 March 2014 until his termination on 13 October 2014.

[4] The Respondent filed five statements and called Mr Graham Malone, the Respondents Production Manager since 2011 4, Mr Brendan Pike, a Project Manager at the Respondent since 20125, Mr Peter Rumball, a former Construction Manager at the Respondent from October 2013 until December 20146 and Ms Sally Hedberg a Financial Accountant with the Respondent since May 2012.7 The Respondent filed a statement from Mr John Marangelli however he was not called to give evidence and the Respondent did not rely on the statement filed.

[5] The Respondent also filed applications for orders requiring the attendance of both Mr Peter Rumball (for who a statement had been filed) and also Mr Brian Boniface who worked as the leading hand. Both orders were subsequently issued. Mr Boniface indicated to my chambers he did not wish to attend however ultimately did attend and gave his evidence on the second day of the hearing.

[6] The Applicant was engaged as a sub-contractor for the Respondent from 29 June 2012 and commenced employment with the Respondent on 20 August 2012. A Wages/Agreement Letter of Offer is attached to his statement. 8 That document makes clear his employment was regulated by the MA000020 Building and Construction General On-Site Award 2010, with mutually agreed variations contained in the contract. He was employed as a Rigger/Boilermaker and took on additional duties as a ‘leading hand’. The Applicant attended a meeting with the Respondent on 15 October 2014. The Applicant was suspended from duties at the conclusion of that meeting and was dismissed by way of a letter from the Respondent dated 16 October 2014, signed by Ms Sally Hedberg the Financial Accountant of the Respondent. A summary of that letter provides that the Applicant was dismissed due to poor performance; threatening and intimidating behaviour; harassment of an employee; making defamatory comments about the Respondent and leaving work without permission. The evidence dealt with a series of incidents. I will deal with them in turn.

Enoggera Army Barracks

[7] Mr Brendon Pike a Project Manager for the Respondent gave evidence that he first had issues with the Applicant on an occasion when he was working at the Enoggera Army Barracks site. He said on one occasion the Respondent had hired a crane, and in the afternoon he realised there was less than one hours work to do but it was ‘knock off time’. Mr Pike said he asked the Applicant and Mr Michael Boniface to stay back to finish the job and they could finish earlier the next day. He said the Applicant refused to stay back and finish the job so because of this the crane had to be hired the next morning at additional expense to the company. 9

Gold Coast Light Rail Project

[8] The Respondent states that in or around May 2014 the Applicant was working at a site that was part of the Gold Coast Light Rail Project. It is claimed the Applicant’s supervisors observed the Applicant working unreasonably slowly, taking excessive breaks to which he was not entitled and not performing the duties of leading hand, for which he was being paid an allowance.

[9] The statements of Mr Peter Rumball, Mr Graham Malone and Ms Sally Hedberg all touch on these allegations. Mr Dwyer on behalf of the Respondent early in the proceedings stated that there was no issue with the quality of the Applicants work, but with his conduct in taking excessive breaks and other matters. 10

[10] Mr Malone, a Production Manager for the Respondent gave evidence that he was instructed by Pat Brown the Managing Director of the Respondent to go and visit the Gold Coast Light Rail Project, and that he was told most of the work was done and there was just bits and pieces to finish but it was taking a long time. He said Pat Brown asked him to inspect the site and see why it wasn’t moving forward at the expected rate. 11 He said he visited the site and assessed that the job should have taken no longer than three weeks to finish.

[11] Part of Mr Malone’s concern appeared to be that the Applicant and Mr Michael Boniface were deliberately parking their cars a long distance from the worksite, in effect wasting time. This allegation fell away in the course of the hearing when it became apparent that witnesses for the Respondent were unaware that the Applicant and Mr Michael Boniface had been instructed to attend daily inductions, and were required to commence each day for that purpose at the Broadbeach South station to obtain instructions for the day. This evidence explained why they had adopted a practice of parking one car at particular location and using another.

[12] Mr Dwyer for the Respondent explained that Mr Rumball was no longer an employee of the Respondent and had initially agreed to co-operate in terms of providing a statement however had become reluctant to attend explaining the necessity for seeking an order for his attendance. Mr Rumball amended some of the language in his statement filed before adopting it. In his oral evidence he agreed that public access to the work sites on the Gold Coast project would explain in large part delays in worked performed on the light rail project. 12

[13] Ms Hedberg said that in or around April or May 2014 Graham Malone reported to her that the Applicant was failing to complete the duties of leading hand, however was being paid the leading hand allowance on the light rail project. Ms Hedberg said Mr Malone advised her that he had to do down to the Gold Coast repeatedly to take tools and equipment to complete the job, when that was the leadings hands job, and she said Graham Malone told her he was frustrated with how long the Applicant and his team were taking to complete the job. Ms Hedberg said Mr Malone complained to her about the Applicant in a number of further conversations in April and May 2014. 13

[14] Mr Malone said on one day in or around late May 2014 he visited the site without telling the employees in advance. He said the Applicant and Mr Carlile were working on Southport station and when asked if the job was finished the Applicant replied that it was not finished, there was one bracket to go but they had run out of brackets. 14 Mr Malone said they should remove one of the brackets and use it as a guide/jig to drill all the bracket holes. The Applicant initially said it was finishing time but when directed to do the work did so.

[15] The Applicant said at the start of the ‘sign bracket job’ he knew that angle brackets were going to be needed but he did not know the quantity that would be required. He said that by 22 May the team (including himself) started working on the part of the job that required the use of the brackets. He said that by late May he realised that the brackets were going to run out, and he said he notified Peter Rumball by phone. He claimed Peter Rumball told him he would sort it out and get some more in.

[16] The Applicant said that the next day the brackets ran out, but because his team had other work to do they started working on ‘something’ that did not require the brackets. The Applicant said that it was much later that day when Graham Malone, came on site and told ‘us’ that we had to remove one of the brackets and use it as a “jig” to drill all the bracket holes. The Applicant said that Graham Malone asked the team right on finishing time to do this, and the Applicant said he mentioned to Mr Malone that is was finishing time however Mr Malone told ‘us’ to stay back and finish it. The Applicant said he mentioned that they were coming back to fit the brackets when they got them anyway, however he said Mr Malone said he didn’t care and said to just do it. 15 The Applicant said he stayed back with another worker for 30 minutes and got this done. The Applicant said that at the time he was not warned of a breach in his duties, and he was not told at any time that he was receiving a verbal warning.

[17] Mr Justin Carlile also gave evidence about the circumstances surrounding the running out of brackets. He said he did not see the Applicant speak to Graham Malone in an inappropriate way, and that the Applicant was always the peace maker. 16

[18] The evidence of Mr Malone was he only spent one and a half hours per week, in thirty minute intervals as a production manager on the light rail project. He also conceded that during this time he did see members of the public on site, and made the comment that placing bollards on the site was an option.

[19] The Applicant submitted that the general working environment during this project, including having to start at one place, and then find parking at another, as well as working around pedestrians should be considered. The Respondent rejected the explanations given in the course of the hearing from the Applicant and Mr Carlile that delays were caused by pedestrians regularly frequenting the sites where the work was occurring. The Respondent relies on the evidence of Mr Malone and Mr Rumball. It was said that both Mr Malone and Mr Rumball as supervisors on the Gold Coast light rail project who had visited the site didn’t observe any difficulties or delays being caused by pedestrians.

[20] Mr Rumball also said there was never a complaint made to him about the issue of pedestrians, or a request for equipment to address the alleged problem. The Respondent submits that absent the excuse, there is no explanation for what Mr Rumball, a Construction Manager of considerable experience saw as delays, other than as asserted for the Respondent that the work was being deliberately performed slowly, or was slowed by extensive breaks being taken.

[21] On one occasion Mr Rumball claimed to have been on site for 40 minutes with no sign of the Applicant, 17 and when he rang the Applicant to ask where he was, was told by the Applicant he was on smoko. The Applicant said he recalled the exchange. He said when Mr Rumball rang they were 2 minutes away, and they had a conversation about how long the job took because of pedestrians.18

[22] The Respondent maintained that its view concerning the Applicants conduct on the Gold Coast project is supported by the evidence of Mr Pike and Mr Rumball regarding the Applicants conduct at other sites where evidence was given of observing the Applicant taking liberties in regard to breaks, being absent for longer than he should be, and being absent when he shouldn’t be absent. There is no evidence of the Respondent warning or counselling the Applicant about these issues in connection with the light rail project. It appears to have been brought by the Respondent on the basis of what it submits is a wider pattern of behaviour.

Removal of Site Supervisor Allowance

[23] The Respondent says that the relationship between it and the Applicant started to decline in or about June 2014 when he was advised his shift supervisor allowance had been retracted. The Respondent argues from around this time the Applicant began to take certain liberties.

[24] Mr Pike gave evidence that at the start of the Bunning’s Ipswich job he was directed by Ms Hedberg to tell the Applicant he would no longer receive the $2 per hour leading hand allowance, and that the Applicant was very annoyed about it. Ms Hedberg confirmed that she directed Mr Pike to advise the Applicant he would not be receiving the leading hand allowance for the next job, and to ensure he was closely supervised for a while. 19

[25] The Applicant accepted that he was told his site supervisor allowance was being withdrawn. He agreed he was not happy about it. The Applicant said he thought it was a $2 dollar site allowance. He then accepted that the site supervisor allowance was referred to in his contract. 20 He agreed he did not complain about the removal of the allowance at the time.21

Bunnings Ipswich and Manly

[26] The Applicant denies ever being late to work at either of the Bunnings work sites as alleged by the Respondent. 22 Mr Michael Boniface said that he was always at work at both the Ipswich and Manly sites at 6am. Mr Boniface said he could not recall the Applicant being late to either of the Bunnings sites.23 Mr Carlile gave similar evidence regarding both Bunnings sites.24

[27] Mr Rumball’s initial statement said that on four instances the Applicant noted on his time sheet that he attended work at 6:00am when working at the Bunnings site in Manly when he did not arrive at work until after 7:00am. Mr Rumball’s statement said that on each occasion he was warned not to do this again. He modified this in his oral evidence to only recalling this occurring two times and that it was more like between 6.30am and 7.00am. He said no explanation was given by the Applicant. 25 His oral evidence was also different to his statement in that he said, contrary to his statement he did not pass onto the employees that they were not allowed to do this.26

[28] When Mr Rumball was asked why he did not as a supervisor raise this with the Applicant he replied that this was because he personally felt rather intimidated, and did not want to approach it. 27

[29] Mr Michael Boniface gave evidence that the Applicant and he always arrived at the same time at the Manly site at 6am and sometimes they would not open the gate until after 6am, including up to quarter past 6am. 28 Mr Michael Boniface claimed the supervisors Mr Pike and Mr Rumball were never at the site at 6am.29 The Applicant also said on one occasion he met Mr Pike at 8am by arrangement.30

[30] The Respondent submitted Mr Rumball was a reluctant witness who was no longer an employee of the Respondent and had nothing to gain by his evidence. Whilst I am inclined to accept the evidence of Mr Rumball that on at least two occasions he was at the Manly site at 6am and no other employees including the Applicant were at the site at 6am, there was no investigation into the matters at the time, and it would be unfair to conclude that timesheet fraud had occurred in the circumstances given no opportunity was provided in a timely way to explore what happened. Mr Rumball has not provided specific dates on which he says this occurred. It is noted that initially the number of times that it was alleged the Applicant committed time sheet fraud went from four times to two times.

[31] It was submitted for the Applicant that on one of the times Mr Rumball said the Respondents employees were not on site at 6am he was in an induction so couldn’t have known whether the Applicant was at work at 6am or not. The Applicants claim that he was always at work on time is supported by the evidence of Mr Michael Boniface, and Mr Carlisle. There was testimony about the gate being shut on occasions at 6am and everyone having to wait at the gate. The evidence overall on this issue is insufficient for me to be satisfied on balance that the allegations have been made out.

[32] Mr Rumball also maintained on a separate issue that on one occasion on the Bunnings site the Applicant left for half an hour and when he returned didn’t explain where he had been. 31 He accepted he did not ask the Applicant at time where he had been. 32

[33] Mr Pike claimed that he regularly observed the Applicant taking long breaks with no explanation. He said if he attended the site in the allotted smoko time the Applicant would often not be back in the allotted break time. He claimed he would regularly observe the Applicant being away from the site for more than half an hour. Mr Pike also claimed that he observed that the Applicant would take a long time to complete his jobs and time programmed by the site supervisor was rarely met.

[34] Mr Pike said on occasion he asked someone from the rigging company the quickest way to get the purlins up and spread them out. He claimed the person he spoke to (who was not identified) said the easiest way was to lift them up in packs and spread them was manually. He said when he asked the Applicant to do this he refused and insisted a crane be used. 33

[35] In regard to Mr Pike’s evidence of alleged slow work concerning the laying of hundreds of purlins that weighed 60 to 80 kilograms by hand, in Mr Pike’s own testimony he agreed that the moving of hundreds of purlins in the manner proposed would be in breach of workplace health and safety laws. Mr Pike conceded in cross examination that the purlins weighed 70 or 80 kilos. 34 Mr Pike accepted in cross examination that the Applicant declined to perform the task concerning the purlins because of his concern of potential for an injury to himself or other workers.35 Given Mr Pike’s own evidence on the issue I do not intend to afford the allegation any weight.

[36] Further in regard to the evidence of both Mr Rumball and Mr Pike concerning the Applicant being observed missing for half an hour (or more); again dates and times were not identified, and neither manager sought to do anything about it at the time. I am inclined to accept that both managers did observe the Applicant being absent as claimed, but it is difficult to attach significant weight to these allegations when the particular circumstances were not investigated at the time, and the Applicant was not challenged about where he was or what he had been doing at those alleged times given the allegations are not specific and a significant period of time has elapsed between when it was claimed these instances occurred and their first being raised with the Applicant to respond to.

Emails late July concerning pay dispute

[37] In or around July 2014 the Applicant requested that the Respondent provide details of his entitlement to meal allowances for the duration of his employment with the Respondent. Ms Hedberg confirmed that she received an email from the Applicant on or around 23 July querying his entitlement to meal allowances and paid breaks. 36 Ms Hedberg said she responded the next day advising the matter was being investigated. Ms Hedberg said that it had been discovered that while there had been an underpayment of meal allowances, there had been overpayment of travel allowances leaving a net overpayment of $5,150.99. On 28 July Ms Hedberg provided a detailed reply to the Applicant advising of the overpayment, that the sum would need to be repaid and requesting that the Applicant provide input as to how he could repay the amount. The Applicant accepted this version of events.37 A series of further emails were exchanged between the Applicant and Ms Hedberg over the issue.

[38] The Respondent says the emails from Ms Hedberg were calm and moderate and having explained to the Applicant the Respondents position, she offered to discuss the issues to explore issues further. The Applicant agreed that he disputed Ms Hedberg’s calculations. 38 Further Ms Hedberg invited the Respondent to contact the Fair Work Ombudsman and provided the phone number if he wished to get advice on the matter. The Respondent argued Ms Hedberg did not have to do that. The Applicant accepted that Ms Hedberg invited him to contract the Fair Work Ombudsman if he had further enquires.39

Workcover Claim

[39] Ms Hedberg said that on 11 August 2014 she received notification of the Applicant making a claim for compensation under the Workcover scheme. 40 The Applicant was absent from work for a few weeks41 returning on 25 August 2014, the same day the Respondent received advice from WorkCover that it would not accept the claim as it arose from reasonable management action (regarding the overpayments).42 43

Complaint to Fair Work Ombudsman

[40] On 20 August 2014 the Applicant made a complaint to the Fair Work Ombudsman regarding the payroll error. Ms Hedberg set out in her statement that the FWO had contacted her twice to scheduled different time for mediation with the Applicant which she had arranged to attend but both mediations were cancelled.

[41] The Applicant said that the Fair Work Ombudsman contacted him to try and arrange a date and he said to the Fair Work Ombudsman, “just let it go for a couple of weeks.” 44 The Applicant said the Fair Work Ombudsman contacted him a couple of days before another proposed mediation in mid September and he said he didn’t know what to do so he said to just leave it. He accepted he allowed the matter to effectively lapse.45

Failure to attend work 27 August 2014

[42] After having returned to work on 25 August the Applicant was engaged in the Toowoomba workshop as at 27 August 2014. The Applicant said in his statement that he was rostered to drive to Justin Carlile’s house that day and meet with him and Michael Boniface and drive to Toowoomba. He said he missed his alarm and did not make the meeting time. He said it was about mid-morning when he missed a call from Ms Sally Hedberg. He said he called her and apologised and told her he had mistakenly slept in.

[43] The Applicant said it had previously been agreed that the drive to and from work would be included in his ‘work hours’ and by the time he had a conversation with Ms Hedberg there was no time to drive to work within his rostered hours. In cross examination he said initially he was not sure how late he slept in. He said his alarm would have woken him at 4am. He then said he woke up at 5am. He said he texted Peter Rumball. The text message read as follows:

“I’m going to need something in writing about how to get to the workshop it’s a five hour round trip from my place to the workshop and back again.”

[44] Ms Hedberg said Mr Rumball forwarded this text message he had received from the Applicant to her. 46 The Applicant said he was not reprimanded at the time. He said he knew that Sally Hedberg was upset but she didn’t indicate to him at the time that there was an issue with his performance or that his actions amounted to unsatisfactory work conduct, and that he did not receive any formal written warning about this isolated incident. It appears from the evidence the Applicant sent the text message to Mr Rumball before contacting Ms Hedberg.

[45] The Respondent submitted that the Applicant’s explanation should not be accepted because on the day the only communication the Applicant had with management about his absence was the text to Mr Rumball set out above.

[46] The Respondent argues that the text is the only explanation for his absence that day.The Respondent pointed to no phone call, or email or text message explaining the reason he did not attend work that day. The only communication was what appears to be a requirement for the Respondent to provide a written clarification around his travel arrangements to and from Toowoomba. The Respondent said communication of this nature is of itself inconsistent with the continuation of the employment relationship, and had the Applicant genuinely slept through his alarm that he would have said so in the text message to his supervisor Mr Rumball, and not sent the text in the form that he did.

[47] It was put to the Applicant that an email forwarded to him by Ms Hedberg that day 47 at 11.43am preceded any phone call he had with Ms Hedberg that day. He was unsure.48 It was also put to the Applicant that the second last paragraph of the email was in effect an olive branch, putting all matters behind them and effectively waiving the Applicants claimed overpayment debt. The Applicant interpreted the email as a concession that Ms Hedberg had “stuffed up” and that he had never been overpaid.49 The Applicant agreed he spoke to Ms Hedberg that day and a meeting was scheduled for 29 August.50

[48] The Respondent says that the Applicant already had access to, and had shown he was quite familiar with the relevant award under which he was paid. The Applicant’s travel entitlements were set out in this award. The Respondent says that Ms Hedberg’s handling of matters on 27 August is entirely inconsistent with the proposition put to Ms Hedberg in cross examination that she bore some ill will toward the Applicant because he raised legitimate issues.

[49] On balance I prefer the view as pressed by the Respondent that the Applicant did not simply sleep in, but instead did not attend work that day in connection with his dissatisfaction with the Respondent including concerning the travel pay issues. The sequence of communications that day between the Applicant, Mr Rumball and Ms Hedberg, particularly the text sent to Mr Rumball draw me to conclude that is the more likely explanation for his not attending work that day, compared to his claim that he slept in. It is noted however the Respondent took no action to investigate, or discipline the Applicant about his reason given for non attendance on 27 August or more generally his failure to attend work that day.

Meeting 29 August 2014 – Alleged Screwing Up Policy Document

[50] The Respondent said it had drafted a travel policy clearly setting out the Applicant’s travel entitlements under the relevant award, and that this was provided and explained to the Applicant in a meeting between the Applicant and Ms Sally Hedberg on 29 August 2014. Ms Hedberg said the meeting lasted about 10 to 15 minutes and was to discuss travel allowances. Ms Hedberg said she gave the Applicant a copy of the travel policy she had recently written in response to his ‘constant queries’ as a guide to interpret and understand Clause 25 of the Award which details travel allowances. Ms Hedberg said she explained to the Applicant that when working at the Toowoomba workshop he was only entitled to claim two hours travel time per day. Ms Hedberg said in her statement she recalled saying to the Applicant that she just wanted to move forward in a positive manner and she wanted to move past the recent difficulties. Ms Hedberg said she found the Applicant to be abrasive during the meeting, for example when she gave him a copy of the travel policy for him to keep, he screwed it up and instead asked for a copy of it to be emailed to him. 51

[51] In his statement the Applicant claimed that on 29 August he was told with other workers that they would be paid for any drive time that was 50 kilometres from Brisbane Central Business District and that it would be included as his work hours as well. The Applicant said he understood that to mean that if he was more than 50 kilometres from Brisbane Central Business District that he was ‘on the clock’. He said this was reflected in the pay slips which included three hours of travel time. The Applicant said it was during this time that he made sure that he left work with enough time to fit his travel time into work hours without making his employer pay for overtime. He said it was his view that this was self-evident, and no one ever brought up the fact he was accounting for his drive time into his working hours.

[52] During cross examination the Applicant said there was no meeting and Ms Hedberg just gave him a piece of paper. 52 When she was cross examined Ms Hedberg was not challenged about her evidence concerning the Applicant screwing up the travel policy when she said she handed the Applicant a copy point. The Applicant denied that this occurred during his evidence. The Applicant accepted that he was in the office with Ms Hedberg at the time and was presented with the travel policy. He agrees that he asked for the policy to be emailed to him but denies screwing it up, and denies being aggressive toward Ms Hedberg. He accepted such behaviour if it occurred would be an affront to management authority.53

[53] It was put by the Respondent that the alleged screwing up of the policy in a meeting with Ms Hedberg fits with a pattern of behaviour on the part of the Applicant and the decline in the relationship between the Applicant and Respondent. Given my earlier conclusion that contrary to the Applicants claim, his non attendance at work on 27 August was more likely not because he slept in as claimed, but was in connection with issues between the Applicant and Respondent regarding pay and travel, and the fact that Ms Hedberg’s evidence concerning the Applicants conduct in screwing up the draft travel policy was not challenged during her cross examination, this leads me to prefer on balance Ms Hedberg’s version concerning this incident. It was put for the Applicant in submissions that he is a construction worker and is not suited or doesn’t have much experience in office environments. Being a construction worker does not justify the Applicants intimidating conduct at the meeting of 29 August described in the account of Ms Hedberg which I have accepted.

Reedy Creek - Resignation of Brian Boniface

[54] In September 2014 a payroll error occurred whilst the Applicant and a number of other employees were engaged at a site at Reedy Creek which meant that the employees were not initially paid correctly for one weekends work.

[55] The Respondent submits that Mr Brian Boniface was a valued employee of the Respondent for around 10 years and resigned on 23 September 2014. The Respondents says that Mr Brian Boniface advised a number of the Respondent’s employees that he resigned because he couldn’t handle the Applicant (and two other employees, including Brian Boniface’s son) due to their “out of control” attitude. It is further claimed Brian Boniface later reported to Ms Sally Hedberg that the Applicant and two other employees had “harassed” him over the September pay issue at Reedy Creek and he just needed to get away from them, so he resigned.

[56] The Applicant said that on or about the middle of September he was on site at the Reedy Creek LNG plant site near Roma and a union representative came on site to talk to them. He claimed he mentioned to the union representative that we were probably not going to get meal allowances and the union representative said that he would look into it.

[57] The Applicant said on or about 7-10 days later he was with Mr Carlile and Mr Michael Boniface talking about their pay. He said they were talking about their pay slips and how it didn’t show that they had been paid for the weekend they had just worked. He said that he noticed that Justin and Michael got angry and both told him that they were going to speak to Brian Boniface about the missing money. He agreed the pay slips would have arrived on Monday 22 September. 54 The Applicant said the other employees were ropable and he calmed them down.55

[58] The Applicant said Brian Boniface came over and told them that he would sort it out. The Applicant said he watched Brian Boniface make a phone call, and after he got off the phone he then said that Patrick Brown is trying to sort it out because Sally Hedberg was not there. The Applicant said that Justin looked angry, said that he was going to call her and in an angry manner walked a few meters away making a phone call. The Applicant said that Justin finished his phone call and was obviously angry, and told them in an angry manner that he had bills to pay and that it was taking a long time.

[59] The Applicant accepted that on Tuesday afternoon of 24 September that Mr Brown intervened and fixed the pay issue. He rejected the assertion that he continued to place pressure and harass Brian Boniface about the issue in that time leading up to that time. 56

[60] Mr Michael Boniface said when the problem with their pay was identified Justin Carlile, the Applicant and himself all went to the supervisor Mr Brian Boniface and he said he asked what was happening. 57 He said he raised the issue with his father Brian Boniface.58 Michael Boniface claimed the Applicant said to give them time to sort it out.59 Mr Justin Carlile also gave evidence that the Applicant told him not to worry about it and it will get sorted out.60 Mr Carlile said they had been told by Brian Boniface to wait until next week and it will get sorted out. He said after he rang Vanessa in the office about it she said she would call back, but instead he received an email saying it would be best to wait until Sally Hedberg got back next week and she would fix it then. Mr Carlile said after getting the email he rang Vanessa back and told her to fix it up today. He said he did not see the Applicant make any phone calls. He said that Sally Hedberg had accused the Applicant of intimidating the payroll staff and he had told her at the time that this was not true and that it was him who made the call not the Applicant.61

[61] The Applicant’s case has been to the effect that whilst his work colleagues including Mr Carlisle were “ropable,” and that while he agrees he was not happy about not being paid correctly, he was trying to calm everybody down. Further that Michael Boniface and Mr Carlisle became angry about being short paid however Brian Boniface formed an impression it was all of the workers at the site, but did not expressly say that the Applicant was angry.

[62] The Applicant relies on the evidence of Brian Boniface, saying his evidence was that the Applicant was not the direct reason for his resignation, but in fact the treatment of the workers by the Respondent and their subsequent reaction was one of the reasons for resignation.

[63] It was put by the Respondent that Mr Brian Boniface was a subject of, or the target of a level of harassment. The Respondent submitted Mr Brian Boniface was less forceful at the time of the hearing about his experience at Reedy Creek than he was in September of 2014. It is noted that one of the witnesses in the Applicant’s case Michael Boniface, was the son of Mr Brian Boniface.

[64] The Respondent points to three witnesses who gave accounts about their conversations with Mr Boniface at the relevant time and each account is consistent, those witnesses being Ms Hedberg, Mr Rumball and Mr Malone. The Respondent says that each witness said words to the effect that Mr Brian Boniface had complained to them about the conduct of the three employees he was working with at Reedy Creek, which included the Applicant.

[65] Mr Malone gave evidence that when Brian Boniface was working at Reedy Creek Brian Boniface would call him almost every day and complain about Michael Boniface, Justin Carlile and the Applicant. Mr Malone said Brian Boniface said he was the leading hand but could not get “the boys” to work properly, and that they wouldn’t listen to him, and that they were deliberately wasting time. 62 Brian Boniface accepted he would have spoken to Mr Malone, but was unclear in his recollection of the discussions, but denied saying he could not get the boys to work properly. 63

[66] Mr Rumball amended to a limited extent his statement concerning the conduct of the Applicant, Michael Boniface and Justin Carlile at the Reedy Creek site; however the claim that Brian Boniface had regularly been on the phone to him complaining to him that the three employees were constantly disruptive and wouldn’t respect his authority as leading hand remained. 64 Brian Boniface did not accept that he said this to Mr Rumball.65 He also did not accept the claim in Mr Rumball’s statement that he said to Mr Rumball in a telephone call, “These three have lost it. I can’t handle this anymore.” 66

[67] Mr Brian Boniface did agree with Mr Rumball’s statement to the extent that he agreed he said to Mr Rumball during a telephone call, “These guys have made me resign. I can’t handle working with people like this.” 67

[68] Ms Hedberg said Brian Boniface attended her office and explained to her that he had resigned his employment because the riggers behaviour at Reedy Creek was “out of control” in relation to the pay issue. Ms Hedberg claimed that Brian Boniface said to her that ‘Mick’ (his son) and the Applicant were harassing him about the pay error, and it was ‘just too much.’ Ms Hedberg claimed she asked him if he wanted to make a complaint and he replied “No, I just want to get out of here.” She claimed Brian Boniface said to her that Michael Boniface and the Applicant would not “let it go” and it was interfering with their work. 68 When Ms Hedberg’s statement was put to Brian Boniface during the hearing and he did not reject it, merely saying he could not recall.69

[69] None of the three witnesses who gave that evidence were challenged about it, and on their evidence these statements were made by Brian Boniface to them contemporaneous with those events. At the hearing Mr Brian Boniface did say the behaviour of the three employees at Reedy Creek was part of the reason he decided to resign. He also attributed equal weight to the Applicant as to the other employees in terms of his decision to resign, and they were all involved. 70

[70] The evidence of the three witnesses for the Respondent was to the effect that Brian Boniface gave it as the reason. In the circumstances I am inclined to prefer the evidence of the three witnesses for the Respondent that Mr Boniface had been motivated to resign his employment with the Respondent in September 2014 for the reasons that Ms Hedberg, Mr Rumball and Mr Malone said that he gave to them. Given Mr Bonifaces’ son was appearing as a witness in the Applicant’s case, and that Mr Brian Boniface no longer had an ongoing employment relationship with the Respondent, this would provide a plausible explanation as to why he may have tempered his version of the events of September 2014 at Reedy Creek in the hearing, as compared to what he said at the actual time to Ms Hedberg, Mr Rumball and Mr Malone. In any event he still gave evidence at the hearing that the conduct of the three employees at Reedy Creek was part of his reason for resigning, which even on his own version reflects poorly on the conduct of the Applicant, given Mr Boniface had 10 years service with the Respondent and had a supervisory responsibility over the Applicant. My finding on this issue involves necessarily a rejection of the Applicant’s account of what occurred at Reedy Creek in regard to him playing only a calming role, and tends to corroborate the broader picture the Respondent seeks to portray about the Applicant’s behaviour.

Alleged Derogatory Comments about the Respondent

[71] It has been asserted by the Respondent that the Applicant made derogatory comments about the Respondent to one of its clients whilst employed at the Reedy Creek site. The Applicant denies the allegation and asserts the only conversation he had about a person outside the Respondent about the Respondent was with a Union representative. The evidence on this claim is insufficient for me to be satisfied that any alleged criticism of the Respondent by the Applicant was made to a client. I intend to place no weight on this allegation in reaching my conclusion in this matter.

Claimed direction on 13 October and events of 14 October 2014

[72] Ms Hedberg gave evidence that in early October a decision was made that the riggers Boniface, Carlile and the Applicant would work 9.5 hours per day when travelling between Brisbane and Toowoomba, including 2 hours travel time each work day. Ms Hedberg said that she was told by Peter Rumball he had communicated this to the riggers including the Applicant. 71 Her evidence on this point was unchallenged and I accept she gave such a direction to Peter Rumball. The Respondent said this was consistent with the evidence of Mr Rumball on the same issue, who said he was directed by Ms Hedberg, or Mr Brown or both to implement that working arrangement.

[73] It is the Respondents case that the Applicant was then told by Mr Peter Rumball that the Respondent wanted him and the fellow riggers who lived in Brisbane to work a four day week at 9.5 hour days per day. It is not disputed that on 14 October 2014 the Applicant attended work at the Toowoomba workshop. The Respondent says that the Applicant’s time sheet noted three hours travel time, despite having clearly been told by Ms Hedberg at a meeting on 29 August 2014 that he could only claim two hours travel time per day.

[74] Peter Rumball gave evidence about his conversation with the Applicant where he claims to have told the Applicant it would be better if he worked a 9.5 hour day to reduce travel time, and this occurred on 13 October, the day before the incident of 14 October. 72 He said he did not get a very welcome reaction from the Applicant when he raised it with him.73 Mr Rumball’s evidence was to the effect that because he felt intimidated by the Applicant and he said that ”We’ll talk about this another time.”74 Mr Rumball clarified that the conversation was by phone and it was on the journey home. Mr Rumball claimed the Applicant said something to the effect of “You’ve got to me shitting me.” He said it was not agreed and it was just a discussion. He agreed that he did not then take that information back to Ms Hedberg or anyone else at the time.75 Mr Rumball’s version is consistent with what Ms Hedberg said in her statement that she was told by Mr Rumball in their conversation about the issue on 16 October.76

[75] There is no dispute that the Applicant left the Respondent’s workshop at 12:30pm and drove to Brisbane without notifying his supervisor on 14 October. 77 It is also not disputed that when questioned by his supervisor Peter Rumball in a telephone call enquiring about his whereabouts, the Applicant said that he had to leave the Toowoomba workshop at 12:30 in order to fit his 3 hours travel into an 8 hour day. There is no dispute that Peter Rumball said to the Applicant in the phone call on 14 October that he was to work four 9.5 hour days and the Applicant replied to the effect that he had never heard about that.

[76] The Applicant says that on 14 October 2014 he went to work as usual, and took into account the usual three hours of drive time and the usual five to six hours of work time. It is conceded by the Applicant that he left work at 12.30pm on Tuesday 14 October 2014 and headed home for the day after arriving at about 7.30am. He says that at 12:30pm he and Michael Boniface filled in their time sheets and left them on-site as usual. He said they both got into the company car and were in the car for about 45 minutes when he received a phone call on his hands-free speaker at about 1:15pm from Peter Rumball, and he told Peter Rumball that he was on speaker and that Michael was in the car with him.

[77] The Applicant said that Peter asked why they were leaving so early because the drive only takes an hour and he said “you are on drugs if you think it only takes an hour, you are not taking into account the road works on the bypass.” 78 The Applicant said that Peter Rumball told him on speaker phone that he should be working 9 ½ hours and then he replied that Peter should put it in writing, then we can have a discussion about it. He then said something like “okay I will talk to you later”.

[78] Mr Michael Boniface accepted that he worked a nine and a half hour day on 13 October the previous day. 79 He claimed no one directed him to work 9 and half hours that day, and that he did it himself.80 The Respondent relies on this evidence of Mr Michael Boniface and Mr Boniface’s timesheet.81

[79] Mr Michael Boniface accepted that he didn’t tell his supervisor or anyone else that he and the Applicant were leaving at 12.30pm on Tuesday 14 October. He said he understood they were being paid from 6am which is the time from Marburg onwards to Charlton outside Toowoomba, of one and a half hours due to road works. 82

[80] Mr Carlile said that he received a phone call from Peter Rumball after lunch on 14 October 2014. Mr Carlile had ceased employment with the Respondent at that stage. 83 He said Peter Rumball asked him if he remembered him saying to “all of us” about instead of doing 8 hour days, and one 6 hour day, to do four 9 and a half hour days. Mr Carlile said he responded by saying to Peter Rumball “I don’t remember anything like that, you are full of shit.”84

[81] Importantly in my view, is Mr Rumball evidence that he found the Applicant intimidating. I am inclined to accept the submission of the Respondent that Mr Rumball’s perception of the Applicant probably interfered with his ability to manage the Applicant as claimed. 85 Mr Rumball claims he discussed with the Applicant his hours of work on Monday 13 October. It was unchallenged that there was a discussion between Mr Rumball and the Applicant that day.

[82] The Applicant’s evidence is that he did not know about being directed to work a 9 and a half hour day. It is said for the Applicant that the Applicant, Michael Boniface and Justin Carlile all confirmed that they were not directed to work a nine and a half hour day. It was submitted for the Applicant that Mr Rumball himself testified that it “wasn’t official.” 86

[83] The timesheet of Mr Michael Boniface on 13 October shows he worked 9 and a half hours that day, which are the hours that Mr Rumball claimed he had advised the Applicant he was to work on Tuesday 14 October. In am more inclined, given the evidence, to prefer the view that Mr Rumball had discussed with the Applicant working a 9 and a half hour day on Monday 13 October, but given the way the conversation unfolded never formally directed the Applicant he was required to work those hours, when, as he said in his evidence, “he did not get a very welcome reaction when he raised it.” Whilst I have accepted that the Applicant was not strictly directed to work those hours, I reject his claim that he knew nothing about his supervisor wanting him to work 9 and a half hour days that week. The Respondents version is more plausible given that it was not challenged that they did have a discussion the day before, Mr Boniface worked a 9 and a half hour day the day before, and both Ms Hedberg and Mr Rumball are consistent in their evidence that is what the Respondent intended to happen from early October.

[84] Mr Rumball said about the Applicant; “Well his demeanour came across as more intimidating than any others that I’ve ever worked with.” 87 What appears to have transpired is that Mr Rumball, because he felt intimidated by the Applicant who he was supposed to be supervising failed to give a clear direction to the Applicant when the Applicant resisted the proposal of working 9 and a half hour days.

[85] Mr Rumball’s evidence fits with the evidence of Mr Brian Boniface and other witnesses for the Respondent concerning the difficulties in managing the Applicant. This evidence tends to support a conclusion that the Applicants conduct over a period of time had become incompatible with ongoing employment with the Respondent. The Applicant departed work at around lunch time on 14 October having worked approximately 5 hours, and without telling anyone he and Mr Boniface were leaving.

15 October 2014

[86] On 15 October 2014 the Applicant said he went to work as usual. He said that Greg, the workshop foreman, came up to them and said “Sally wants to talk to you”. He said he was with Michael Boniface at the time so he believed that to be Michael and himself. He said he walked with Michael into the smoko room and waited for Sally Hedberg to turn up. He said after a few minutes John Marangelli came in and told him that he was entitled to a support person, and he said he would like Michael to be there. He said while he was sitting with Michael, Peter Rumball came in and sat with them, then Sally Hedberg came in and sat down.

[87] The Applicant said he told everyone at the table that he was happy for Michael to be his support person. Mr Michael Boniface agreed he attended the meeting with Ms Hedberg and the Applicant on 15 October. He accepted the he was also terminated by the Respondent a few days after this. 88

[88] The Applicant accepted that Ms Hedberg raised each of the issues identified as the reasons for termination in the meeting and he had a clear understanding of what they were. 89

[89] Ms Hedberg agreed during cross examination that at the time of the meeting on 15 October no official investigation had been undertaken, however she said she had verbal reports given to her by ‘numerous supervisors within the business.’ 90 Ms Hedberg said that meeting was in the morning and she spent the rest of that day and the majority of the following day, the 16 October 2014 speaking with supervisors and she telephoned the union rep at the Reedy Creek site.91

[90] Ms Hedberg said she spoke to a number of the Applicant’s supervisors and also to Greg Churchman a union official. Ms Hedberg said that Greg Churchman said words to the effect of “the guys were over the top in their attitude” in relation to the September pay mistake at the Reedy Creek site. Ms Hedberg said that Mr Churchman told her that he did not know any of the guys names but said “the tall guy was over the top”, which Ms Hedberg took to be a reference to the Applicant as he was taller than the other workers involved in the pay mistake. 92

[91] Ms Hedberg said that she formed the view that the Applicant has been dishonest in the disciplinary meeting regarding his conduct in the September pay dispute, and about his knowledge that he was to work four 9 and half hour days per week when working in the Toowoomba workshop. It was put for the Respondent that it reasonably formed the view that the Applicant’s poor attitude and behaviour had indeed occurred and the Applicant had been dishonest in his response at the disciplinary interview.Accordingly, on 16 October 2014 the Respondent decided to, and did, dismiss the Applicant.” 93

HARSH, UNJUST OR UNREASONABLE

[92] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account a range of considerations in s.387. I will deal with them in turn.

[93] The Applicant has asserted the dismissal was a summary dismissal. The evidence does not support this submission. The Applicant was invited to a meeting attended by a support person on 15 October and asked to respond to the issues on which the Respondent ultimately relied to terminate. Following the Applicant responding to each of the issues he was stood down until the following day, and terminated the following day after the Respondent had conducted its own further enquiries. The Applicant was paid notice in lieu.

[94] In regard to whether the Respondent had a valid reason, the Applicant contends that he was not informed at any time prior to 15 October 2014 of the reasons (for dismissal) outlined in the termination letter and received one phone call about leaving work early which ended with the representative for the Respondent saying that they will “talk later”. The Applicant further contends that he was never told by the Respondent that his performance was substandard. The Applicant submits that the Respondent never had a problem with the Applicant’s work and as a result did not address this with him at any point during his employment until the meeting of 15 October 2014.

[95] The Respondent argues that the conduct providing a valid reason for dismissal occurred over a series of months from May 2014 to October 2014. The Respondent argues the Applicant demonstrated a pattern of abuses in respect of work arrangements in a largely unsupervised environment, or where supervision was not particularly strict. The Respondent also argues the Applicant showed a disrespectful attitude toward management, and in particular Ms Hedberg who was responsible for payroll matters. The Respondent drew attention to the fact that Ms Hedberg is not a Human Resources professional but an accounts employee who manages payroll by default and the company does not have such a person.

[96] I will summarise my findings set out earlier in this decision. The evidence was not sufficient for me be satisfied about the allegation that the Applicant was taking long breaks to which he was not entitled. I made similar findings regarding the allegations that he misrepresented the hours he had worked on his time sheets, and that he that took an unreasonably long time to complete tasks.

[97] I have however found on balance that his non attendance at work on 27 August was in connection with the issue of his travel entitlements, and not that he slept in as he claimed. I have also rejected his evidence concerning his behaviour at the Reedy Creek site, and accepted the evidence of the three witnesses for the Respondent, and the evidence of Brian Boniface that the Applicants conduct at Reedy Creek was not as he had claimed and his conduct did contribute to Brian Boniface’s decision to resign from employment with the Respondent.

[98] I have also preferred the evidence of Ms Hedberg over the Applicant concerning the meeting of 29 August, and found that the Applicant did behave in an intimidating manner toward her in screwing up a document she had handed to him. I have also been satisfied that contrary to the Applicants claim that the matter of a 9 and a half hour day had never been raised with him before 14 October, Mr Rumball did in fact raise it with him on 13 October however did not ultimately formerly direct him to work these hours when the Applicant resisted this proposition, but this was only because Mr Rumball was intimidated by the Applicant. It is not contested that the Applicant left Toowoomba on Tuesday 14 October at 12.30pm without advising anyone. Mr Rumball’s evidence is consistent with the evidence of Mr Brian Boniface and Ms Hedberg that the Applicants conduct had got to a point where it was an affront to management authority and supported the conclusion that over a period of time his conduct had become incompatible with ongoing employment with the Respondent. What also flows from my findings above is that the Respondent had a reasonable basis to concluded the Applicant had not been honest in the course of the meeting on 15 October particularly regarding the events at Reedy Creek and the issue of 9 and a half hour days.

[99] The Applicant has sought to establish that Ms Hedberg had a motivation for dismissing the Applicant in that she was frustrated with him. Ms Hedberg presented well in her evidence suggesting someone of calm and considered demeanour. The documents produced in evidence by Ms Hedberg all suggest she did not take offence at the Applicants pursuit of these matters including his meal allowance claim, Work cover claim and complaint to the FWO and attempted to work through these issues with the Applicant as they arose in a methodical way. I do not accept the premise as put on this point in the Applicants case.

[100] On the basis of the findings made above I am satisfied that the Respondent did have a valid reason for dismissal. This is a case where it has not been one single event, but an accumulation of events that have provided the Respondent with a valid reason to terminate the Applicant.

[101] The Applicant was put on notice as to the issues in a disciplinary meeting on 15 October 2014, and was advised of the reasons for termination in a letter of 16 October 2014.

[102] In terms of whether the Applicant was given an opportunity to respond to the reasons for dismissal, the Applicant argues that he was not afforded procedural fairness with regards to the Respondent not conducting a proper investigation into the issues brought up in the termination letter. The Applicant also argues that the Respondent failed to provide substantive proof to justify the termination of the Applicant. The Applicant accepted in cross examination that each of the matters that were relied upon as a basis to terminate him, as set out in the statement of Ms Hedberg 94 was raised with him as allegations in the meeting of 15 October.

[103] It would have been preferable for the Applicant to have had clear notice in advance of the meeting of the precise nature of the allegations that were to be raised with him in the course of the meeting. He did not have that, which limited his ability to give considered responses in the circumstances. The Applicant clearly did not regard it as a proper opportunity. 95 At the end of the meeting the Respondent advised the Applicant they were going to investigate the responses the Applicant provided in the disciplinary meeting, and if it was found that the conduct issues put to the Applicant in that meeting were supported by the Applicant’s supervisors and other individuals, then the Applicant could face further disciplinary action or dismissal.

[104] After this meeting, the Respondent spoke to a number of people regarding the Applicant’s allegations and reached its conclusions, however Ms Hedberg accepted she did not go back to the Applicant or his support person Mr Michael Boniface and put to them what had she had been told by others since their meeting on the morning of 15 October. 96It would have been proper for her to do so. To that extent the process the Respondent followed in terminating the Applicant was flawed.

[105] The Applicant understood the purpose of the meeting on 15 October and had a support person Mr Michael Boniface present with him in the meeting as he had requested.

[106] The Respondent did not give the Applicant any warning about his performance; however the Respondent maintained in the hearing that its difficulties with the Applicant were not issue with the Applicants performance as such, but more in connection with his conduct. It is noted that the evidence discloses a number of instances where it would have been expected that concerns raised in the course of the hearing by witnesses for the Respondent, could have been, but were not raised with the Applicant at the times they were said to have arisen.

[107] The Respondent is not a small business within the meaning of the Act, however is relatively small employing 27 employees. The Respondent had no dedicated human resources professional working for it at the time of dismissal. Ms Hedberg who was charged with responsibility for conducting the investigation and the termination of the Applicant had limited experience in human resources, and this is a matter that can be taken into account when considering the adequacy of the process undertaken on 15 October.

[108] I have considered each of the matters required to be considered under section 387 and conclude that the Respondent had a valid reason for termination and despite procedural failings in the manner in which the termination was effected the dismissal was not harsh, unjust or unreasonable. On that basis the application is dismissed.

COMMISSIONER

Appearances

Applicant: Ms M J Thorley Solicitor of HKT Lawyers

Respondent: Mr J C Dwyer of Counsel instructed by Thynne and Macartney Lawyers.

Hearing Details

Brisbane, Thursday 12 March and Friday 13 March 2015.

1 Exhibit 5 Statement of Mark Andrew Gray (undated) filed 29 January 2015

2 Exhibit 1 Statement of Michael Boniface (undated)

3 Exhibit 4 Statement of Justin Carlile (undated) filed 29 January 2015

4 Exhibit 7 Statement of Graham George Malone (undated)

5 Exhibit 8 Statement of Brendon Pike (undated)

6 Exhibit 9 Statement of Peter Rumball (undated)

7 Exhibit 10 Statement of Sally Anne Hedberg (undated)

8 Exhibit 5 Statement of Mark Andrew Gray (undated) attachment MG A.

9 Exhibit 8 Statement of Brendon Pike (undated) paragraph 6

10 Transcript dated 12 March 2015 PN 127

11 Exhibit 7 Statement of Graham George Malone (undated) paragraph 8

12 Transcript dated 13 March 2015 PN 1215

13 Exhibit 10 Statement of Sally Anne Hedberg (undated) Paragraph 5 - 7

14 Exhibit 7 Statement of Graham George Malone (undated) paragraph 14

15 Exhibit 5 Statement of Mark Andrew Gray (undated) paragraph 8

16 Exhibit 4 Statement of Justin Carlile (undated) paragraph 6

17 Exhibit 9 Statement of Peter Rumball (undated) paragraph 10

18 Transcript dated 12 March 2015 PN 729

19 Exhibit 10 Statement of Sally Anne Hedberg (undated) Paragraph 10

20 Transcript dated 12 March 2015 PN 733 - 738

21 Transcript dated 12 March 2015 PN 742

22 Transcript dated 12 March 2015 PN 657

23 Transcript dated 12 March 2015 PN 257

24 Transcript dated 12 March 2015 PN 463-470

25 Transcript dated 13 March 2015 PN 1221-1223

26 Transcript dated 13 March 2015 PN 1225

27 Transcript dated 13 March 2015 PN 1227

28 Transcript dated 12 March 2015 PN 152-155

29 Transcript dated 12 March 2015 PN 159

30 Transcript dated 12 March 2015 PN 766-770

31 Exhibit 9 Statement of Peter Rumball (undated) paragraph 18

32 Transcript dated 13 March 2015 PN1335

33 Exhibit 8 Statement of Brendon Pike (undated) paragraph 14

34 Transcript dated 12 March 2015 PN 1144

35 Transcript dated 12 March 2015 PN 1149-1152

36 Exhibit 5 Statement of Mark Andrew Gray (undated) paragraph 11 attachment SAH1

37 Transcript dated 12 March 2015 PN 784

38 Transcript dated 12 March 2015 PN 786

39 Transcript dated 12 March 2015 PN 788

40 Exhibit 10 Statement of Sally Anne Hedberg (undated) Paragraph 19

41 Transcript dated 12 March 2015 PN 792

42 Transcript dated 12 March 2015 PN 794

43 Exhibit 10 Statement of Sally Anne Hedberg (undated) Paragraph 26

44 Transcript dated 12 March 2015 PN 801

45 Transcript dated 12 March 2015 PN 806 - 807

46 Exhibit 10 Statement of Sally Anne Hedberg (undated) Paragraph 27

47 Exhibit 10 Statement of Sally Ann Hedberg (undated) attachment SAH 21

48 Transcript dated 12 March 2015 PN 849

49 Transcript dated 12 March 2015 PN 850-851

50 Transcript dated 12 March 2015 PN 863-865

51 Exhibit 10 Statement of Sally Anne Hedberg (undated) Paragraph 37

52 Transcript dated 12 March 2015 PN 867

53 Transcript dated 12 March 2015 PN 877

54 Transcript dated 12 March 2015 PN 907

55 Transcript dated 12 March 2015 PN 918 - 919

56 Transcript dated 12 March 2015 PN 926

57 Transcript dated 12 March 2015 PN 188

58 Transcript dated 12 March 2015 PN 268

59 Exhibit 1 Statement of Michael Boniface (undated) paragraph 11

60 Exhibit 4 Statement of Justin Carlile (undated) paragraph 13

61 Exhibit 4 Statement of Justin Carlile (undated) paragraphs 13-18

62 Exhibit 7 Statement of Graham George Malone (undated) paragraph 18

63 Transcript dated 13 March 2015 PN 1399 - 1401

64 Exhibit 9 Statement of Peter Rumball (undated) paragraph 20

65 Transcript dated 13 March 2015 PN 1380

66 Transcript dated 13 March 2015 PN 1384

67 Transcript dated 13 March 2015 PN 1390

68 Exhibit 5 Statement of Mark Andrew Gray (undated) paragraph 45

69 Transcript dated 13 March 2015 PN 1371

70 Transcript dated 13 March 2015 PN 1430 - 1431

71 Exhibit 5 Statement of Mark Andrew Gray (undated) paragraphs 46 and 47

72 Transcript dated 13 March 2015 PN 1234

73 Transcript dated 13 March 2015 PN 1237

74 Transcript dated 13 March 2015 PN 1242

75 Transcript dated 13 March 2015 PN 1250-1251

76 Exhibit 10 Statement of Sally Ann Hedberg (undated) paragraph 53

77 Transcript dated 12 March 2015 PN 943

78 Exhibit 5 Statement of Mark Andrew Gray (undated) paragraph 37

79 Transcript dated 12 March 2015 PN 328

80 Transcript dated 12 March 2015 PN 331

81 Exhibit 2 Document marked as Daily Time Card of Mick Boniface dated 13 October 2014.

82 Transcript dated 12 March 2015 PN 339-344

83 Transcript dated 12 March 2015 PN 597

84 Exhibit 4 Statement of Justin Carlile (undated) paragraph 21; Transcript dated 12 March 2015 PN 599

85 Transcript dated 13 March 2015 PN 1632

86 Transcript dated 13 March 2015 PN 1665

87 Transcript dated 13 March 2015 PN 1321

88 Transcript dated 12 March 2015 PN 367

89 Transcript dated 12 March 2015 PN 957-976

90 Transcript dated 13 March 2015 PN 1566

91 Transcript dated 13 March 2015 PN 1567

92 Exhibit 5 Statement of Mark Andrew Gray (undated) paragraphs 53

93 Respondent’s submissions paragraphs 2.17 - 2.18

94 Exhibit 10 Statement of Sally Ann Hedberg (undated) paragraph 51

95 Transcript dated 12 March 2015 PN 977

96 Transcript dated 13 March PN 1569

Printed by authority of the Commonwealth Government Printer

Mark Gray v Brown Engineering and Construction P/L

[2015] FWC 1481

21 APRIL 2015

DECISION