Mr Allan King v Coal & Allied Operations Pty Ltd T/A Hunter Valley Operations
[2012] FWA 6615
•20 SEPTEMBER 2012
[2012] FWA 6615 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Allan King
v
Coal & Allied Operations Pty Ltd T/A Hunter Valley Operations
(U2011/1699)
COMMISSIONER MACDONALD | SYDNEY, 20 SEPTEMBER 2012 |
Application for unfair dismissal - Applicant and five other employees stood down - allegations of harassment and intimidation by Reynolds - first investigation interview - second lot of allegations of harassment and intimidation by Turner - second investigation interview - show cause letter issued after second investigation interview - summary dismissal next day - issues of procedural and substantive fairness - credit of certain witnesses - onus and standard of proof for summary dismissal - one allegation made out against applicant - consideration of Respondent’s bullying/harassment policy and disciplinary procedure policy - valid reason for dismissal found - FWA declined to intervene in Decision of Respondent to summarily dismiss Applicant
[1] This decision arises from an application by Mr Alan King (the Applicant) pursuant to section 394 of the Fair Work Act 2009 for a remedy in respect of his dismissal by Coal & Allied Operations Pty Ltd t/a Hunter Valley Operations (the Employer/the Respondent).
[2] The unfair dismissal application was filed on 19 August 2011.
[3] The Employer’s response to the unfair dismissal application was filed on 12 September 2011.
[4] The unfair dismissal application was listed for conciliation before a Fair Work Australia (FWA) conciliator on 16 September 2011 but did not resolve.
[5] The unfair dismissal application was set down for a two day Hearing in December 2011 but deferred at the request of the parties to a later time. Not only was this application deferred but so were the other two related unfair dismissal applications: Lee Thorpe (U2011/1700) and Brett Harris (U2011/1702).
[6] All three unfair dismissal applications were heard before myself (Macdonald C) concurrently in Newcastle on 26, 27, 28, 29 and 30 March and 29 May 2012. An inspection of the Respondent’s mining operations in the Hunter Valley was held on 28 May.
[7] The Applicant (and the applicants in the other two unfair dismissal applications) were represented by Mr Alex Bukarica of the Construction, Forestry, Mining and Energy Union (the CFMEU/the Union). Mr Bukarica was assisted by Mr Thomas.
[8] During the concurrent hearings, Mr Bukarica called the following witnesses:
Lee Thorpe - Applicant (U2011/1700)
Brett Harris - Applicant (U2011/1702)
Allan King - Applicant (U2011/1699)
Daren Watson - Employee and union representative
[9] The Respondent was represented by Mr Anthony Longland, solicitor, and assisted by Mr Young, solicitor.
[10] During the concurrent hearings, Mr Longland called the following witnesses:
Kaz Reynolds - B Crew employee/complainant
Ben Turner - B Crew employee/complainant
Perry Wild - Maintenance Supervisor (B Crew)
Nathan Collyer - Assistant Supervisor (B Crew)
Kristy Wilson - HR Specialist
Katrina Mason - HR Advisor
Steve Jackson - Maintenance Manager
Brett Johnson - Mobile Maintenance Superintendent (of five crews)
Graeme Holland - Head of Human Resources
Tom Lukeman - General Manager
BACKGROUND
[11] Mr Allan King (the Applicant) was employed by the Respondent as a Plant Mechanic at its Hunter Valley Operations Open Cut Coal Mine. The Respondent is a subsidiary of the global mining company, Rio Tinto.
[12] The Hunter Valley Operations has a workforce comprising employees (over 1000 employees) and contractors (actually employees of contractors and they number 600). The employees are engaged on either a collective enterprise agreement or an individual contract.
[13] Mr Allan King commenced employment with the Respondent in 2005. Prior to being engaged as an employee, he worked at the site as a contractor from 2002 to 2005. He was engaged as an employee under the collective enterprise agreement.
[14] For some time, Allan King worked in the B Crew, Mobile Maintenance Division. The other two applicants, Thorpe and Harris, also worked in B Crew. Around December 2010, Mr Thorpe transferred to a different crew outfit.
[15] According to the witness statement of Perry Wild (Ex. 20), there are around 11 permanent employees in B Crew (8 mechanics and 3 auto-electricians) and 5 contractors who generally perform the same work as the employees. Thorpe, King and Harris were employees who were summarily dismissed by the Employer.
[16] The work B Crew does involves the servicing and maintenance of mining vehicles in the Mobile Maintenance Workshop (the Workshop). The majority of the work is done in the Workshop but on each shift generally 2 mechanics and one auto-electrician are assigned to do field work on vehicles that have broken down in the coal pits.
[17] B Crew works a 7 day fortnight roster involving both day and night shifts.
[18] According to the Respondent’s case, three workers (Reynolds, Turner and Link) were the subject of harassment and intimidation over a period of time. Reynolds was engaged as an employee. Turner was engaged as a contractor but became an employee and Link was engaged as a contractor. Their harassment and intimidation, said the Respondent, was carried out by Thorpe, King and Harris (all employees).
[19] The alleged harassment and intimidation came to a head through the Curtis Smith incident.
[20] Ben Turner (then an employee, formerly a contractor) had a conversation in late July 2011 with a Curtis Smith (a contractor). Turner said he was told by Curtis Smith that Harris had told Curtis Smith that contractors (actually employees of contractors) should not speak to Turner.
[21] Turner deposed he took this message to mean that Harris and other unionists did not like it when contractors spoke to full time employees who were employed under individual contracts, as opposed to the collective enterprise agreement. (Ex. 19, para 56)
[22] Turner, on the same day, mentioned the Curtis Smith message to Nathan Collyer, Assistant Supervisor to B Crew (and under Perry Wild). Turner said to Collyer not to mention anything about this Curtis Smith message. But Collyer responded he had a duty of care to do so. Brett Johnson, Mobile Maintenance Superintendent, confirmed that there is sometimes an obligation to act on information - depending on seriousness of allegation - even though a worker asks that no action be taken. (PN 6635)
[23] In the meantime, Reynolds deposed he was approached by Turner who said he had slipped up by telling Collyer of the message. Turner asked Reynolds to tell Curtis Smith of the slip up because probably questions will be asked of Curtis Smith. Reynolds informed Curtis Smith of the slip up, as requested by Turner. (Ex. 18, paras 100 to 102)
[24] Collyer reported Turner’s “slip up” to Wild who reported the matter to Brett Johnson who discussed the matter with Holland. It was agreed by Johnson and Holland to invite the CFMEU President (Kerry Wild) to speak to the employees and advise them that that sort of reported conduct was not acceptable. The CFMEU President held such a meeting of employees and contractors on the weekend.
[25] Reynolds did not attend this weekend meeting as he was off work to move house. He did not return to work until the following Wednesday, 3 August.
[26] The meeting of union members and contractors took place in the Workshop. Some unionists were asking the contractors as to why they had dobbed in the unionists. Turner was at the meeting and did not disclose that it was not a contractor(s) who had dobbed in the unionists, but himself (an employee). Neither Kaz Reynolds (an employee) nor Craig Link (contractor) was present for that meeting as they were not at work.
[27] Turner was off work for a couple of days and returned to work on Wednesday, 3 August. He met up with Kaz Reynolds. Turner deposed that he asked Reynolds if the “BK fellows have been a bit funny around you?” Reynolds responded in the affirmative and added that they were not talking to him despite his attempts to talk to them. Turner then told Reynolds why the BK fellows (contractors) were not talking to him - Reynolds had dobbed in Curtis Smith. Reynolds responded, “I’ve never said a fucking work about it.” (Ex. 19, para 64)
[28] Reynolds deposed that he approached Curtis Smith and said it was not him who caused Perry Wild to talk to Curtis Smith. Further, Reynolds said he was snatching the job. It was a serious thing, he said, to be accused of reporting another worker to the bosses. (Ex. 18, para 108 to 111) (As to that defence by Reynolds that it was a serious thing to be accused of reporting another worker to the bosses, Reynolds witness statement advised that he had done that very thing. He reported to Neil Smith, the then Maintenance Manager, that King and Harris slept during work on a number of occasions on night shifts - Ex. 18, paras. 41-47.)
[29] Later that night, Reynolds contacted Perry Wild (Maintenance Supervisor, B Crew) and told him about what had been happening on the job. He decided to make a formal complaint about the harassment he had witnessed and did so, the next day, 4 August. He met with Johnson (Mobile Maintenance Superintendent), Wild (Maintenance Supervisor B Crew) and Holland (Head of Human Resources).
[30] On Thursday 4 August 2011, Allan King was called to a meeting for an unknown reason. Present at the meeting were Steve Jackson (Maintenance Manager), Brett Johnson (Mobile Maintenance Superintendent), Allan King and Steve Scott (employee support person). Mr King was advised that he was being suspended from work on full pay pending an investigation. He was advised of allegations of harassment and intimidation being made against himself by Reynolds only. No further information was provided to him. The other two applicants, Thorpe and Harris were also stood down on full pay for the same reasoning. (Three other employees, Chris Giddins, Sean Logue and Brendan Boyd, were also stood down on full pay. Following the investigatory process, Chris Giddins was not given any disciplinary action, Sean Logue was given a final written warning and Brendan Boyd had his services terminated but he did not lodge an unfair dismissal application.)
[31] On Friday 5 August, Chris Giddins was interviewed. He had a support person (Watson). The minutes of his interview was not put in as evidence. Arising out of the interview process, he was not given any disciplinary action.
[32] On Monday, 8 August, Allan King attended a meeting with Steve Jackson, Brett Johnson and Graeme Holland (Head of Human Resources for the Respondent). Attending as well, as an employee support person, was Darren Watson. The handwritten minutes of the meeting were taken by Brett Johnson who later had these minutes typed up by Ms Eliza O’Shea (Human Resource Officer). (Meetings were also held that day for Thorpe and Harris.)
[33] During this meeting, Graeme Holland raised various matters with King as to his interaction with other fellow employees on the job, in particular, Kaz Reynolds. King was asked if he had any comment about harassing behaviour and Reynolds. “Not off hand” he said and added he had invited Kaz to his 30th birthday party. King had no issues with Kaz not being a member of the Union. King had not called anyone a scab. King denied other questions put to him as to comments he may have made to Reynolds. King said Reynolds was a storyteller and gave examples of his storytelling. King denied Reynold’s allegation that he and Harris had tried to log on to mobile computers as Craig Link. King was also asked about his relationship with Perry Wild. King denied sleeping on the job - except during crib break with Perry Wild’s approval. King was aware that Reynolds had submitted his resignation from Hunter Valley Operations and would not be signing up to the collective agreement as he was going to work at Mount Arthur coal mine. King was aware that Reynolds had withdrawn his resignation. King was asked if he had ever invited Reynolds out for a beer and responded that Reynolds lives on the other side of Scone. King said he had been out with Harris, Logue and Thorpe - for a beer. King was asked if he had heard Thorpe make certain statements about scabs and it’s going to be a long night. King responded in the negative. King denied shoulder charging Ben Turner. (Ex. 26, GH-8)
[34] Interview meetings were also held with Logue and Boyd on that Monday. The minutes of their interviews were not put in as evidence.
[35] On Tuesday, 9 August, Ben Turner made out a statement of allegations of harassment and intimidation against Thorpe, King and Harris.
[36] On Thursday, 11 August, Allan King attended a meeting with Steve Jackson, Brett Johnson, Graeme Holland, and Eliza O’Shea. Attending as well, as an employee support person, was Darren Watson. Ms O’Shea took and typed up notes of the meeting. (Ex. 26, GH-12) The duration of the meeting is not recorded but there are five page of questioning and responses over various issues. Arising out of the meeting, Allan King was given a Show Cause letter. (Meetings were also held that day for Thorpe and Harris.)
[37] Interview meetings were also held with Logue and Boyd on that Thursday. The minutes of their interviews were not put in as evidence. Arising out of their interviews, Logue was given a final written warning. When and how this occurred is unknown. Boyd was given a Show Cause letter.
[38] On Friday, 12 August 2011, Allan King attended the Show Cause Meeting. The same persons, as for the day before, were present. Eliza O’Shea took and typed up the minutes of the meeting. (Ex. 26, GH-16) At the conclusion of the meeting, Allan King was asked to wait outside whilst Graeme Holland telephoned Mr Tom Lukeman, General Manager of the Respondent. Having been appraised of the Show Cause Meeting responses of Allan King, the General Manager decided that the services of Allan King should be terminated. Allan King was presented with a termination letter of the same date, 12 August, advising of summary dismissal for serious and wilful misconduct.
[39] The reason for summary dismissal was the harassment and intimidation of two fellow workers, Kaz Reynolds and Ben Turner and in particular for deliberately making physical contact with Ben Turner on at least three occasions. The termination letter is silent on any harassment or intimidation of Craig Link. (Ex. 28, TL-1). (Meetings were held with Thorpe and Harris on the same day and they also were summarily dismissed.)
[40] Boyd had his services dismissed on that Friday. It is not known whether it was a dismissal with notice or summary dismissal. The minutes of his interview was not put in as evidence. Logue was issued with a final written warning. The minutes of that interview was not put in as evidence.
FINAL SUBMISSIONS
For the Applicant
[41] Mr Bukarica, for the Union, provided to FWA a detailed written submission of some 130 pages on behalf of the three dismissed members (Ex. 29) That document comprised two parts: Part A - “General matters common to each application” and “Submissions concerning credit of key employer witnesses”; and Part B - “Evidence and submissions individual applicants” and “Submissions concerning remedy”.
[42] FWA sets out below the main issues raised in that document under Part A and Part B (but only in respect of the Applicant for this particular Decision - and not, unless relevant, for the other two applicants).
Part A - General matters common to each application.
[43] In respect of Part A, Mr Bukarica submitted as follows:
(a) The Respondent’s essential contention against all three applicants is that they engaged in a co-ordinated and predatory campaign (a joint conspiracy) of harassment against Mr Reynolds and Mr Turner.
(b) In alleging a conspiracy or collective campaign, the Respondent needs to prove that allegation of serious misconduct to the appropriate standard of proof. Mr Bukarica submitted that few, if any, of the specific instances relied upon by the Respondent to support its collective campaign allegation, can be properly characterised as “serious” or “major” breaches of the Respondent’s Disciplinary Procedure Policy (Coal & Allied Hunter Valley Operations Disciplinary Procedure).
(c) The standard of proof for serious misconduct is the Briginshaw standard (Briginshaw v Briginshaw ([1938] 60 CLR 336) and the onus is on the Respondent to meet that standard of proof.
(d) The Act, as well, defines “serious misconduct” at s.12 by reference to the definition contained in the Fair Work Regulations 2009. Does the conduct alleged against the three dismissed employees fall within the categories of misconduct contained in the Fair Work Regulations 2009 at 1.07 ?
(e) The Respondent has a Disciplinary Procedure Policy and a Bullying and Harassment Policy (Rio Tinto Coal Australia Workplace Diversity, Harassment & Equal Opportunity Policy). The evidence reveals repeated deficiencies in the application of the Bullying and Harassment Policy in the context of the Respondent’s investigation process leading to the dismissal of the three employees. It is difficult to see how any of the particular allegations (of instances of misconduct) could fall within the category of “serious” or “major” breach of the Disciplinary Procedure Policy.
(f) The Respondent carries the onus of proving that a conspiracy took place against Turner and/or Reynolds by the three dismissed employees and that the alleged conduct of the three dismissed employees is to be categorised as “serious” or “major” breach conduct. The Union submitted that the allegations only approach the category of serious misconduct if it is accepted that they are examples of repeated and deliberate behaviour forming part of a joint campaign or conspiracy involving the applicants.
(g) As a general submission, there are some very serious problems with the state of the evidence relied upon by the Respondent. Firstly, there are credit issues concerning the two complainants (Turner and Reynolds in particular). The Respondent erred in not obtaining independent corroborating evidence to support the allegations of the two complainants. Secondly, the Respondent adopted a view that it had to choose in absolute terms that either the complainants or the applicants were telling the truth, as opposed to that at least some of what the applicants were saying in their defence was true. This led the Respondent to err in the application of an appropriate sanction - as the Respondent denied the applicants the benefit of the doubt. Thirdly, the evidence is deficient in the Respondent’s case because of an almost total lack of contemporaneous investigation of the complaints. Fourthly, the Respondent relied upon a large amount of relatively poor quality “evidence” that is, opinion, hearsay, circumstantial or unfairly prejudicial evidence.
(h) The evidence reveals numerous failures in the Respondent’s investigation process leading to the dismissals. Firstly, the Respondent refused to allow the applicants to have proper particulars of the allegations made against them prior to the commencement of the formal interviews on 8 August 2011. Secondly, the above lack of proper particulars, impacted on whether the applicants were given a proper opportunity to respond to the allegations - as in marshalling corroborative evidence in their defence. Thirdly, the applicants were not given sufficient time to prepare a response to the “show cause” letters, which is the final step in the disciplinary process before an employee is dismissed. Fourthly, the Respondent’s investigation process is flawed because of the failure of its relevant officers to investigate apparent complaints about victimisation and bullying in a contemporaneous manner. Thus, the Respondent relied upon allegations of instances of conduct by one or more of the applicants, being in some cases many months old, to justify summary dismissal. Fifthly, the Respondent dismissed Allan King and Brett Harris for reasons that included matters not dealt with (however briefly) in the “show cause” letters of 11 August 2010.
Submissions concerning credit of key employer witnesses.
(i) The dismissal of the applicants arose directly from the allegations made about them by Kaz Reynolds. The termination of the applicants’ employment is precisely the outcome sought by Kaz Reynolds. Mr Bukarica submitted that Kaz Reynolds is an habitual liar and that he conceded lying on a number of occasions and including lying under oath. Accordingly, wherever the allegations of Kaz Reynolds cannot be corroborated, then, when his evidence is in conflict with another person, the evidence of the other person is to be preferred.
(j) As to the other complainant, Ben Turner, the Union submitted that the evidence suggests he is a person who is very disposed to give his Employer what he perceives the Employer wants regardless of the impact on his fellow workers. Ben Turner is an admitted informer on his fellow employees. In the witness box, he presented as someone evasive and wanting to stick to a script, regardless of whether the script was starting to sound increasingly ridiculous. His character and honesty were brought into question in relation to his role in what can be termed the “Curtis Smith rumour incident”.
Part B - Evidence and submissions concerning individual applicants.
Applicant - Allan King
[44] Mr Bukarica’s written submissions concerning the allegations made by Reynolds and Turner and the evidence concerning those allegations are set out in detail in Exhibit 29 (pages 59 to 99 inclusive). The essence of the Union’s case on behalf of Allan King is set out below.
Allegations by Kaz Reynolds
[45] The allegations of harassment by King against Reynolds cannot be sustained. Reynolds makes very few allegations against King.
[46] Reynolds alleges that King (and others) called Reynolds a scab. But that does not make sense because Reynolds said he was joining the Union.
[47] King asked Reynolds if he was going to join the Union. That is not harassment. King denies saying to Reynolds that King “could only push shit for so long” in respect of Reynolds not yet being a Union member.
[48] Reynolds claimed he was ostracized by the crew but King says there was no ostracism.
[49] King (and Harris) said it was Reynolds who ceased speaking to the crew.
[50] King denies calling Reynolds a “fucking piece of shit”.
[51] King invited Reynolds to his 30th birthday party in April 2011. Reynolds does not deny this claim. That invitation is hardly the action of a person who engages in an exercise of harassment and intimidation.
[52] Reynolds had offensive graffiti put on his crib bag. King spoke to Reynolds and gave him support.
[53] Perry Wild (Maintenance Supervisor - B Crew) said that in approximately February-April 2011, Reynolds began to complain to other managers about other employees. But no mention is made about King in these complaints and King was absent from work during this allegation of complaint period - King was on on parental leave (7 February until late March/early April 2011) and for an eight week period ending May 2011.
[54] Reynolds claimed that King once slept on the job and did so in early 2011. King denied this allegation. King advised he was authorised to sleep in the crib room.
[55] King was not terminated for sleeping on the job and the first he knew of this allegation was when the Employer filed its material. Mr Bukarica submitted that the Respondent could not rely upon this allegation when it was aware of the allegation at the time and did not inform King that the allegation was being relied upon to support the dismissal.
[56] Reynolds makes a number of allegations of King harassing and intimidating Craig Link. This involved ignoring or failing to assist Link, telling others not to talk to Link, referring to Link as a scab when talking about Link, cutting Link’s two-way radio and jamming his computer. King denies these allegations. Link himself makes no such allegations. Link is still employed by the Employer and the failure of the Employer to call Link entitles FWA to draw a Jones v Dunkel (1959) 101 CLR 298inference - that the calling of Link would not have assisted the position taken by the Employer. Further, King was not terminated for allegedly harassing and intimidating Link. Accordingly, FWA cannot take this issue into account.
[57] Two of the witness statements (Wild and Collyer) refer to King losing his temper at Wild. King does not deny this incident. King says he got frustrated when he could not take home Lee Thorpe who was ill. Wild acknowledged that King apologised and that it was a one-off incident.
[58] Reynolds claimed that he saw King lose his temper in “around early 2011”. Reynolds gave contradictory evidence as to whether there was or was not a witness(es) to this allegation. Reynold’s allegation should be rejected given issues about his credit.
Allegations by Turner
[59] Turner claimed to have been bullied from “day one” but advances no sensible reason in support of his claim. Turner was not an employee at the time but a contractor and there is no evidence of a generally hostile relationship between the contractors and the employees.
[60] Turner was distant to King and other employees.
[61] Turner acknowledged that there were no occasions of King abusing or threatening him by way of using swear words or any form of harsh language or calling him a scab.
[62] Turner claims that King intimidated him in the crib room around early July 2011. Turner said that King made a louder than usual noise when eating his potato chips; that King kicked the underside of the table with sufficient force to vibrate the table Turner was sitting at; and that King deliberately bumped the back of Turner’s chair when leaving the crib room. King said he had no memory of eating chips. King said he was sitting some six metres from Turner and that it was not possible to vibrate the table at which Turner sat because the tables are bolted to the floor and there is a half inch gap between the tables. King denied deliberately bumping the back of Turner’s chair.
[63] Turner’s evidence under cross-examination about the deliberate bump on the back of his chair, was that he had left the crib room before King left and therefore how could King deliberately bump the back of his chair.
[64] Further, there is no witness to any of these crib room allegations.
[65] Turner claimed he was shoulder barged by King in July 2011, when approaching the steps to the crib room and as King was leaving the crib room. King denied this allegation.
[66] Brett Harris was asked about the “shoulder barge” incident in cross-examination as Turner said he was walking behind King at the time. Harris said he had no recollection of any such incident.
[67] Turner stated that King deliberately barged him with what felt like his shoulder in the muster room. King acknowledged he bumped into Turner after he had been bumped by one of the contractors, which pushed him into Turner. King said it was accidental and he apologised to Turner for bumping him.
[68] Turner and Reynolds gave evidence that King (and others) deliberately “ignored” Turner. But King did speak to Turner who acknowledged that King had spoken to him about a JHA (a joint employees safety check procedure) and about training on a piece of equipment. It was to be remembered that Turner took action to isolate himself from King who gave evidence that Turner generally kept to himself. King communicated with Turner to the extent necessary to do the job.
[69] Turner stated that King made a reference to a “scab on his nose” which Turner took to be an offensive statement directed at Craig Link. This is not a comment, if made, directed at Turner and therefore cannot be an example of harassment or intimidation by King against Turner.
[70] Reynolds gave evidence on this comment and said it was directed at Turner. The Respondent did not call Craig Link as a witness.
[71] Turner claimed that another employee (Brendan Logue) gave him a wrong sized bucket to drain oil from a piece of machinery. The result was an embarrassing oil spill. Turner said this was an example of bullying but makes no allegation against King over this incident. King said he was not there at the time.
[72] Turner makes the extraordinary allegation that three employees (including King) stared at him for 40 minutes and this sort of thing happened frequently. Reynolds went further and claimed that King (and others) would stare at Turner for around an hour. King denies both claims. It is implausible that King and others had a special talent for staring for up to an hour. Further, there was no available spare time on the job to put that special talent to effect.
[73] The “hand control” incident is not an incident about harassment. There was a discussion between Turner and King on the job as to whether a “103” had been done and who had the responsibility for doing it. This was a safety issue raised by King.
[74] Turner makes mention of two alleged incidents over a period of at least two years when he says King harassed him about joining the Union. King denied both allegations. King agrees that he spoke to Turner on one occasion about joining the Union.
[75] Turner claimed that King deliberately ran a training course in the operation of a dozen so as to ensure Turner missed out on the training. This claim is nonsense. King has no control over the allocation of training.
[76] Turner raises other allegations of bullying but does not say King was involved.
FINAL SUBMISSIONS
For the Respondent
[77] The Respondent provided FWA with a typed Respondent’s Final Submissions (RFS). (Ex. 31) That RFS document is double sided and just over 180 pages in length. It comprises a General Submission part, followed by submissions on Thorpe, Harris, King; Credibility and bullying; and finally, Procedure and remedy. There is also an Annexure called: Media article regarding pig dogs.
[78] The General Submission deals with a number of issues including employment arrangements (employees on individual contracts and employees covered by the collective enterprise agreement), policies regarding harassment and onus/standard of proof. Mr Longland disputed the Union’s submission on the applicability of Regulation 1.07 to unfair dismissal cases. The opening to the General Submission states that the resolution of the matters before FWA involves making findings about the credibility of various witnesses. Further, the background of strong negative views about individual contracts presents a plausible motive for some (but not all) of the harassment conducted by the three applicants. The RFS added that the history of anonymous vandalism and graffiti in the Workshop shows that such conduct does occur (making otherwise extraordinary allegations more plausible).
[79] The RFS said that this was a case about the individual conduct of Thorpe, King and Harris and which conduct included the bullying and harassment of their co-workers. Reynolds is then quoted as saying about these three individuals, “The Union didn’t harass me, these guys did.”
Applicant - Allan King
[80] The Respondent’s case against Allan King is set out in its typed Respondent’s Final Submissions (RFS). (Ex. 31, pages 116 to 154 inclusive) The essence of the Respondent’s case against Allan King is set out below.
Allegations by Kaz Reynolds
[81] Reynolds stated that when he arrived at work late one morning in late 2010 or early 2011, King said, “Are you allowed to turn up late when you are on a scab agreement”? Reynolds added that this was said to him even though other employees believed he would join the Union. Reynolds said he was still “regarded as being on the fringes”.
[82] In July 2011, King said to Reynolds, “You fucking piece of shit”, when Reynolds picked up his radio. (King had hoped Reynolds would forget it). There were two witnesses to the incident: Logue and Boyd. King did not call these two former employees to give evidence.
[83] King pressured Reynolds to join the Union nearly every time King and Reynolds spoke (near the time that Reynolds was going to swap over from an individual contract to the collective agreement). The witnesses: Wild, Collyer and Johnson gave evidence of Reynolds speaking to them about the pressure to join the Union.
[84] King ignored Reynolds once Reynolds revealed he was not going to end his individual contract - around July 2011. The witnesses: Wild, Collyer and Johnson recalled that Reynolds made a complaint about the July 2011 conversation with King. Kristy Wilson (HR Specialist) gave evidence that Reynolds spoke to her and said other employees were ignoring him and that he thought it was because of the individual contract.
[85] Reynolds also alleged that King frequently heard Craig Link being called “mong” (mongoloid); that he observed King (and Harris) deliberately cut-off Link when he was speaking on the two-way radio by pressing on the microphone button on King’s (Harris’) radio; and that King (and Harris) repeatedly entered Link’s computer login ID and an incorrect password into work computers with the effect of preventing Link from being able to log-in.
[86] Reynolds said that he saw King (and Harris) asleep during work on night shifts on a number of occasions. Reynolds reported to Neil Smith (the then Maintenance Manager) that employees were sleeping on the job.
Allegations by Turner
[87] Turner alleged that from March 2009 (when he started at the site) until August 2010, King did not engage in any conversation with Mr Turner beyond the bare minimum required to do the job. Turner said hello but King (and Harris) ignored him or just grunted hello.
[88] Reynolds gave evidence that King told him not to speak to scabs like Turner (or Link).
[89] Wild gave evidence that he never saw King speak to Turner during shift starts.
[90] Collyer gave the same evidence as Wild and said Turner had raised with him that other employees were ignoring him. Mason and O’Shea both stated that they recalled Turner mentioning to them at the time, that other employees were ignoring him.
[91] Turner wrote an email to Johnson on 2 May 2011, about graffiti on the toilet walls and also referred to contractors being told not to talk to him.
[92] The RFS concluded that the foregoing matters and other issues were evidence of a deliberate strategy to bully Turner.
[93] Turner was excluded from the JHA process (Job Hazard Assessment). This is required when there are more than 3 persons on a job. King excluded Turner by taking the JHA book off elsewhere and did the JHA without Turner. King also excluded Turner by not taking the book elsewhere but doing the JHA in his absence. When Turner finished another job and came looking for the JHA book, he could not easily find it because it was put in an unexpected place or he could find it but the wrong information was entered on the JHA.
[94] Collyer stated that Turner complained to him at the time of being excluded from JHA’s done at the start of a job.
[95] The RFS said the foregoing exclusion fitted in with the deliberate strategy of excluding Turner.
[96] When it became known that Turner would be offered engagement as an employee (he had been a contractor from 2009 to September 2010), King (and Harris) began to talk to him.
[97] The RFS put that this King (and Harris) approach about joining the Union, could be viewed as having an intimidatory effect, given that King (and Harris) had ignored Turner for a period of time.
[98] Turner perceived that a certain third person conversation was directed at him and it was intimidating. The conversation occurred in early 2011, on a night shift, between King and Logue, who began the conversation, “It is going to be good having you in the Union”. Turner responded “Who said I am joining the Union”. Thence King spoke to Logue (in front of Turner) about the merits of being in the Union.
[99] The RFS criticised King for not calling Logue to give evidence in support of King’s denial of the conversation.
[100] Turner said it was a frequent occurrence for King to stand in groups of persons and stare at Turner while he worked. In one instance, Turner said King (Harris and Boyd) stared at him for 40 minutes whilst he was doing a job.
[101] Reynolds gave evidence that he observed King (and Harris) stand in groups staring at Turner.
[102] Wild gave evidence that Turner complained to him about people staring at him.
[103] The RFS put, amongst other things, that Turner’s evidence was consistent with Reynold’s evidence and should therefore be preferred.
[104] King (Harris and Logue) were part of a group of persons who laughed at Turner when he drained oil on himself. This happened because he was deliberately given by Logue an undersized bucket (10 litre) for draining a 140 litre oil carrying mining vehicle. King denied the event, but the RFS stated that the incident was consistent with a campaign of bullying.
[105] Reynolds gave evidence of a scab comment by King that Reynolds perceived was directed at Turner. The alleged comment was, “I’ve got a fucking scab in my nose. Fuck I hate scabs.” Reynold’s perception was based on hearing that comment and another conversation.
[106] Turner gave evidence that King harassed him during crib breaks in a crib room. The harassment was in the form of King commentary about taking a free ride by not being a Union member but the commentary was in the third person (not in a conversation with Turner).
[107] Wild and Collyer gave evidence of Turner requesting his own crib time because of harassment.
[108] Subsequent to Turner’s request for a separate crib time, there were two other occasions when Turner said he was intimidated by King in the crib room. This involved King sitting at the table, looking at Turner, eating a bag of chips, making louder noises than usual. King was also kicking the table. This occurred in early July 2011.
[109] Collyer gave evidence that Turner reported the kicking of the table to him.
[110] Wild gave evidence that Turner reported that King would sit at the table and stare at Turner.
[111] Turner alleged that King shoulder barged him, mid-June 2011. Turner said he stood aside at the bottom of the stairs to the crib room but King deviated out of his path to shoulder barge Turner.
[112] Collyer gave evidence of the incident being reported to him.
[113] Reynolds gave evidence that the incident was reported to him by Turner.
[114] Harris was present at the time of the alleged incident and denied any knowledge of the incident.
[115] Turner said that in late July 2011, King bumped into him in the muster room. King said the incident occurred on 4 August and said it was an accident and apologised to Turner who perceived the bump to be deliberate.
[116] Harris was present at this time and was walking behind King. Harris said he saw no such incident. The RFS put that the inference is available that Harris was lying in an attempt to assist King.
CREDIT OF WITNESSES
[117] Both Mr Bukarica and Mr Longland submitted that I would need to make findings on credit about the witnesses in determining the outcome of the unfair dismissal applications.
[118] My approach in determining each unfair dismissal application, has been to decide issues on the evidence firstly and, if necessary, decide issues on credit.
[119] It is not necessary that a credit determination be made about every witness and where no credit finding is made about some of the witnesses, then nothing turns on that fact.
Credit and Kaz Reynolds
[120] Kaz Reynolds is a self admitted storyteller. He told some “tall stories”. Associated with these “tall stories” is an issue as to whether he was lying.
[121] The Union’s Final Submissions deal with the credit of Reynolds and pointedly, the Union says that Reynolds is an habitual liar. (Ex 29, pages 26 to 31) The RFS deal with the issue of credit generally and in particular with Reynolds and the Respondent put that Reynolds was prone to exaggeration but that did not mean he was lying. (Ex. 31, pages 156 to 160)
[122] The Union submitted that Reynolds lied to other employees of the Respondent when he said he owned an auto-electrical business with an annual turnover of $2 million. Reynolds agreed under cross-examination that that was not true. The turnover, he said, was $280 to $350,000. (PN 3179 to 3182)
[123] The Union submitted that Reynolds lied to other employees of the Respondent about having employees in the Northern Territory and Groote Eylandt. When asked why he told “that particular lie”, Reynolds responded, “I was just going along with the lies. At the time I was in discussions with superintendants back in Western Australia, looking at my options to leave New South Wales.” A few questions later, Reynolds said, “Every lie that I told these guys (other employees) was deliberate ... Because I didn’t want them to know me. I wanted them to think of me as a storyteller so I could go to BHP and just prove myself as an auto-electrician.” When then asked how lying would help him get a job at BHP Mount Arthur, he responded, “I didn’t say it’d help me get a job there”. A few questions later, he said, “And I basically after that first one, everything was a lie from then so I didn’t care. I didn’t care what I said to them basically.” In defence of further questioning of his lying nature, he denied being a liar in the normal course of events and was only lying in this particular circumstance (to the other employees). (PN 3448 - 3472)
[124] In respect to Reynold’s defence that he lied to the other employees he agreed under cross-examination that he also lied to HVO management (the Respondent’s management) about how much money his business made. (PN 3318 - 3321)
[125] The Union dealt with at length its submission on Reynold’s lie about his involvement with Anthony Mundine.
[126] Reynolds said in his filed witness statement that he exaggerated when he told people that he “had fought with Anthony Mundine. I truth I had played against him in a rugby league game at sports festival when I was around 11 years old.” (Ex. 18, para 156) Under cross-examination, in the witness box, this “In truth” correction was shown to be a lie. Mr Bukarica questioned Reynolds as to how he could have “played against him (Mundine) in a rugby league game” when Mundine was 17 years of age at the time that Reynolds was 11 years of age. Initially, Reynolds responded that Mundine played “at the same carnival” as he did. Eventually, Reynolds admitted that he had lied when he made his “In Truth” correction in his witness statement. (PN 3400 - 3422) The Union submitted that this transcript extract showed that Reynolds had lied under oath.
[127] The Union also raised the “pig dogs” story as one telling against Reynold’s credit. Reynolds told people he had shot the hunting dogs (crossbred pig dogs) of trespassing hunters and that his action was necessary under the circumstances. He denied he had told people that he had bashed up the trespassers. He gave evidence that the trespassers were not carrying rifles as far as he could tell. (PN3504 - 3554)
[128] The Union submitted that this incident was a fabrication. The Respondent referred to a media article where a farmer shot a pig dog on his property.
[129] I am unable to make a finding about this incident as to whether it is a fabrication or not. In any event, I do not need to do so in order to make a finding about the credit of Reynolds.
[130] I do not need to make a finding as to whether Reynolds is a story teller or that he tells lies, because he admitted to those matters.
[131] The RFS put that past exaggerations by Reynolds do not indicate that he is lying in these circumstances (his claims about harassment and bullying). I reject that submission. How am I to know when Reynolds is telling the truth given that he is a self admitted story teller and liar? In particular, I was not impressed with his credit as a witness in regard to the Anthony Mundine story. Thus, he filed a witness statement in which he corrected a previous falsehood by him in respect to saying he had fought Mundine. This witness statement now sets the record straight: “In truth I had played against him in a rugby league game ...” (my underlining added). So, Reynolds was saying in his witness statement that he was now tellingthe truth about his involvement with Mundine. But in the witness box, under cross-examination from Mr Bukarica, he admitted that this “In truth” correction (I am now telling the truth) was a lie. His credit as a witness was seriously damaged by this one piece of cross-examination relevation.
[132] Reynolds denied being a liar generally and only lied in these circumstances. But that defence does not make sense. Reynolds did not need to tell these stories about Anthony Mundine, the $2 million business turnover and having employees working for him, in order to carry on his alleged lie to Thorpe and others that he was going to join the Union (when he had no intention of doing so), in order, as it were, to keep in good with Thorpe and others. (He admitted to this Union membership intention as being a lie - PN 3394.) I find that these story tellings have no relevance to Reynold’s defence that he was trying to keep in good with Thorpe and others. His indicating to Thorpe and others that he was going to join the Union, was sufficient in itself to keep him in good stead with those unionists given that that was his intention - while he bought time to look for another job elsewhere (for example, BHP, Mount Arthur). The story telling was irrelevant to his purpose of leading on unionists about joining the Union.
[133] In conclusion, I find that when there is a conflict between the evidence of Reynolds and another, and in the absence of other evidence to support Reynolds allegations, then I am unable to rely upon the evidence of Reynolds.
Credit and Allan King
[134] Allan King was cross-examined on two diary notes of 3 and 8 June 2011, attached to his witness statement. (Ex. 13, AEK-1 and AEK-2 respectively) These diary notes made by him recorded two occasions where he said Ben Turner was involved in hostile or unfriendly behaviour towards himself (King). The incident on 3 June allegedly involved King walking along the “Green Mile” ( a designated safe walkway that is painted green) towards Turner and Craig Link. The second incident on 8 June occurred in a room. King alleged that both Turner and Link made derogatory comments and he took it that the comments were made for his benefit.
[135] Mr Longland for the Respondent questioned the genuineness of these two entries and put to King that both entries were a fabrication (PN 2533-2589). To that end, Mr Longland also produced into court, per a summons, King’s diary. King was asked to explain why these two entries appeared in his diary. He responded that he thought it was necessary for him to do so. He added that he made entries in the diary if there was anything (presumably an incident) that’s in direct relation to himself. What was then put to him was why he had not recorded in his diary the incident between himself and his supervisor, Wild. The incident concerned King’s request to drive home, a sick Lee Thorpe. King said he was cranky over the refusal of his request and swore. He was subjected to a formal disciplinary caution.
[136] The explanation by King as to why a formal disciplinary caution was not included in his diary but the two incidents with Turner and Link were, did not seem plausible to myself. Further to that, the photostated diary entries of 3 and 8 June annexed to his witness statement, also included for each week of those two entries, handwritten entries as to his work roster: “Day off”; “Day”; “Step up Day” and “Night”. But these work roster entries only appear in King’s diary for those two weeks covering the 3 and 8 June alleged incidents - and not for any other week in his diary. In other words, the photostated two weeks have the appearance of being dressed up to make them look genuine. King denied that these entries were a fabrication but I find otherwise.
[137] The significance of the fabrication is that King sought to cast a negative assessment on both Turner and Link’s characters - that is, the fabrication did not go to minor issues. As for Turner, he sought to portray him as hostile and unfriendly. As for Turner and Link, he sought to portray that they both engaged in “scab” commentary. This “scab” commentary constituted part of the allegations made by Reynolds and Turner against Thorpe, King and Harris - that is, that the latter three called Reynolds and Turner “scabs”, directly or indirectly.
[138] The consequence of this finding is that where there is a conflict in the evidence between Turner and King (and there is no other evidence to decide the conflict), then I prefer the evidence of Turner.
Credit of Reynolds versus King
[139] I have made adverse findings about Reynolds and King. Reynolds is a story-teller and self admitted teller of lies. King fabricated part of his evidence and that fabrication goes to attacking the characters of Turner and Link. Those two findings present at least one difficulty for myself: which evidence to prefer when the evidence of Reynolds and King are in conflict? King made one bad judgement call. Reynolds storytelling and self admitted teller of lies left me in the position where I could never know if he was telling the truth on all matters of importance. Accordingly, I have decided to prefer the evidence of King over Reynolds when their evidence is in conflict, unless there is some other evidence to support Reynolds allegations against King.
Credit and Ben Turner
[140] The Union submitted that I should make an adverse finding about the credit of Turner. In that regard, I was referred, for example, to the cross-examination of Perry Wild by the Union. In that cross-examination, Wild confirmed that Turner would inform Wild of employees who were malingering in the workshop and did so frequently. Turner had also told Wild that he aspired to be a supervisor. (PN 5492-5502)
[141] Whatever the foregoing shows, it does not show Turner to be an untruthful witness. He may be career minded and inform on his fellow employees to achieve that end, but it does not follow that he is an untruthful witness.
[142] Having considered the Union’s submission on the credit of Turner, I decline to accept that submission.
ONUS and STANDARD OF PROOF
[143] Given that this is a summary dismissal case, then the Respondent carries the onus to prove that the facts existed to support the Respondent’s decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers, Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990 35 IR 70 at 83-84.
[144] The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the applicant) has to prove that those facts existed, on the balance of probabilities.
[145] The above standard of proof required by the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 354-369, per Dixon J.
[146] Von Doussa J in Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 435, applied the principles recognised by Dixon J in Briginshaw and said that the strength of the evidence required (to prove a case on the balance of probabilities) may vary according to the gravity of the fact to be proved. Where a charge of fraudulent and dishonest conduct is made, the court will require a higher degree of probability than it would if it were considering an allegation such as negligence.
[147] During final submissions, two issues arose that I now address.
[148] The first issue went to a difference of opinion between the advocates about the applicability of Regulation 1.07 to unfair dismissal cases.
[149] Mr Bukarica tendered a written submission that in part dealt with onus. Thus, the written submission (Ex. 29) said that the onus was on the Employer to prove the existence of facts or circumstances to justify the summary dismissal. If the Employer met that onus, then FWA had to decide whether these facts or circumstances amounted to serious misconduct. It was the next step in this “onus” submission, to which Mr Longland objected.
[150] Thus, the Union said that the Act defines “serious misconduct” at Section 12 (The Dictionary section of the Act) by reference to the regulations. The Fair Work Regulations 2009 at 1.07, gives the meaning of “serious misconduct”. Regulation 1.07 gives examples of what constitutes “serious misconduct” - for example: theft, fraud, assault. I was then being asked to determine whether the facts or circumstances fell within the meaning of “serious misconduct” as defined by Regulation 1.07. (The written submission of the Union goes on to the next step which is applying the facts or circumstances to the Employer’s policies of (a) Bullying and Harassment and (b) Disciplinary Procedure. That next step submission is not relevant for present purposes.)
[151] Mr Longland submitted that if I was to adopt that line of reasoning by the Union (as to the applicability of regulation 1.07 to unfair dismissal cases), then that would be an appellable error.
[152] Mr Longland said that the term, “serious misconduct” does not appear in “Part 3 - 2 -Unfair Dismissal” section of the Act and accordingly I could not apply the meaning of “serious misconduct” contained in Regulation 1.07, to the unfair dismissal applications before FWA. That term was instead, contained in the National Employment Standards, Subdivision B - Redundancy Pay and advised that an employee was not entitled to redundancy pay for reason of “serious misconduct” (Section 123(1)(b)).
[153] That submission of Mr Longland appears to be correct. I was not taken to any case law on the point.
[154] In any event, the definition of “serious misconduct” in Regulation 1.07, might provide some guidance for the three (if at all) unfair dismissal applications under consideration.
[155] The second issue was raised by Mr Longland in objection to a submission from Mr Bukarica that I should draw a Jones v Dunkel finding against the Respondent for their failure to produce a witness(es) to support either Reynolds and/or Turner’s allegations where Reynolds and Turner claimed that there was a witness(es) to certain allegations made by them against Thorpe, or King or Harris.
[156] Mr Longland put in oral submissions, that the Jones v Dunkel inference should instead be found against the Union (that is, Thorpe or King or Harris) for failing to produce a witness(es) to support their respective denial(s) of allegations made by Reynolds and/or Turner.
[157] Mr Longland referred to a passage from a New South Wales Court of Appeal Decision for support that the onus was on the Union to call the witness(es): Payne v Parker [1976] 1 NSWLR 191. That passage is from the judgement of Glass J A and is reproduced below. For completeness of understanding, I have also included the prior paragraph which is proposition number six from the judgement of Glass J A. This proposition number six, sets out the three conditions for the application of the Jones v Dunkel principle. The paragraph Mr Longland referred to is the first condition. I have also included the second and third conditions from the judgement:
“6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number:
(a) the missing witness would be expected to be called by one party rather than the other,
(b) his evidence would elucidate a particular matter,
(c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid., Regina v. Burdett , or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital , or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the
higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid.. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v. Australian Portland Cement Pty. Ltd.; his safety officer: Earle v. Castlemaine District Community Hospital; his accountant: Steele v. Mirror Newspapers Ltd.; his treating doctor: O'Donnell v. Reichard.
(8) According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts: Jones v. Dunkel, might have proved the contrary: ibid.; would have a close knowledge of the facts: O'Donnell v. Reichard, or where it appears that he had knowledge:Nuhic v. Rail & Road Excavations. I would think it in -sufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.
(9) The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory. The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege: Wigmore, par. 286.”
[158] Mr Longland submitted that the witnesses (Logue and Boyd) to certain events should have been called by the Union to support say, the defence of King. He relied upon the extract from Payne v Parker to support that submission. Thus, he described Logue and Boyd as being both Union members and being two employees who did not sign up to individual contracts of employment. Accordingly they could be regarded as being in the same camp as King rather than in the same camp as Reynolds. (PN 7969)
[159] I reject that submission for the reasoning set out below.
[160] The onus was on the Employer to prove the misconduct that it claimed that the three applicants had engaged in, given that it was a summary dismissal: Pastrycooks’ Case.
[161] The Employer carried the onus to show, on the balance of probabilities, that it had the evidence to support its decisions of summary dismissal.
[162] To that end, the Employer (per Holland, Head of Human Resources) carried out an investigation which entailed interviews with Reynolds at first instance, thence the six suspended employees (including Logue and Boyd), an interview with Turner and perhaps other interviews of a formal or informal nature (Lukeman, Jackson, Johnson, Wild, Collyer, Wilson and Mason).
[163] Through that investigative process, the Employer gained knowledge about the evidentiary strength and weakness of each allegation made by Reynolds and Turner. In particular, the Employer had knowledge of the responses of say, Logue and Boyd, to certain allegations of Reynolds and Turner made against Thorpe or King or Harris that also involved Logue or Boyd. Those responses are recorded in the minutes of interviews of Logue and Boyd. (If the Employer was to submit that no minutes were kept of the Logue and Boyd interviews, then the interviewing officers, Holland and others, had the verbal knowledge of their responses to the Reynolds and Turner allegations.)
[164] The minutes of the Logue and Boyd interviews were not put in as evidence by the Employer. Why not? Given that the Employer had the knowledge, gained from these Logue and Boyd interviews, as to whether the Logue and Boyd responses supports or does not support certain Reynolds and Turner allegations against Thorpe or King or Harris, then the failure of the Employer to put these minutes of interviews into evidence, infers that the Employer knew that the responses of Logue and Boyd do not support certain allegations of Reynolds and Turner.
[165] For the Employer to then submit (turn a blind eye to its knowledge) that the Union had the onus to call say Logue and Boyd and through them provide knowledge to the Tribunal, is a shifting of the evidentiary onus that is upon the Employer (and not the Union) to prove, on the balance of probabilities, that it had the evidence to summarily dismiss the applicants.
[166] The Employer had the knowledge as to what Logue and Boyd knew through the investigation process and the onus was upon the Employer to call Logue and/or Boyd as witnesses to support its onus to prove, on the balance of probabilities, that it had the evidence to support its decision to summarily dismiss Thorpe, King and Harris. This knowledge factor, gained by the Employer through its investigation process, satisfies the second condition for the application of the Jones v Dunkel principle: “(b) his evidence would elucidate a particular matter;”. The failure of the Respondent to call Logue and Boyd, allows me to draw a Jones v Dunkel inference that had the Respondent called these witnesses, then their evidence would not have assisted the Respondent’s case.
[167] The foregoing reasoning goes to the consequence of the application of the Jones v Dunkel principle and hence is predicated on the basis that the Employer (per Holland) asked Boyd and Logue, during their interviews, the relevant enquiries pertaining to the Reynolds and Turner allegations and has knowledge as to their responses. If however, the Employer (per Holland) did not ask the relevant enquiries of Boyd and Logue, then the Employer does not have the knowledge of their responses and hence the Jones v Dunkel principle does not apply. In that situation, there has been a failure by the Employer to carry out a proper investigation.
[168] The consequence of a failure to carry out a proper investigation by the Employer is that the Employer cannot benefit from that failure by their submitting that the Union should have called Boyd or Logue to obtain the evidence to resolve a conflict in the evidence that should have been resolved by the Employer at first instance during its investigation. It is a summary dismissal case and the onus is on the Employer to prove, on the balance of probabilities, that it had the evidence to find that the alleged misconduct had occurred.
CONSIDERATION
[169] Alan King filed an unfair dismissal application against his summary dismissal on the grounds of harassment and intimidation of Reynolds and Turner.
[170] The RFS give a background of strong negative views about individual contracts as a plausible motive for some (but not all) of the harassment conducted by the three Applicants.
[171] The strong negative views found an outlet by way of graffiti on the toilet walls. But it was not one sided authorship - although the authors were not found out despite a forensic investigation by the Employer. Brett Johnson gave evidence that the graffiti had a tit for tat theme because some of the graffiti-derogatory comments were made about the Union and some derogatory comments were made about non-unionists. (PN 6698-6706) For example Turner gave evidence of graffiti saying “I’m a scab and proud of it” and “scabs rule”. (PN 4496-4497) On the other side of the tit for tat, Turner deposed to this graffiti: “Selfish cunts All bastards Scum” (which spells out “scabs”). (Ex. 19, para. 8)
[172] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
a) “whether the application was made within the period required in subsection 394(2);
b) whether the person was protected from unfair dismissal;
c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
d) whether the dismissal was a case of genuine redundancy.”
[173] The unfair dismissal application was made seven (7) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[174] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.
[175] Paragraph (c) and (d) of section 396 have no relevance in this case.
[176] The Applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[177] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
a) “the person has been dismissed; and
b) the dismissal was harsh, unjust or unreasonable; and
c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d) the dismissal was not a case of genuine redundancy.”
[178] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the Applicant said his dismissal was harsh and/or unjust and/or unreasonable.
[179] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
a) “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b) whether the person was notified of that reason; and
c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h) any other matter that FWA considers relevant.”
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[180] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.
[181] Mr Allan King had his employment terminated by Mr Tom Lukeman, General Manager, Hunter Valley Operations. He was provided with a termination of employment letter dated 12 August 2011. (Ex. 28, TL -1)
[182] The termination letter referred to his meetings with Steve Jackson, Brett Johnson and Graeme Holland on 8 and 11 August concerning allegations by Kaz Reynolds and Ben Turner that King had engaged in harassment and intimidation against them.
[183] The termination letter referred to a third meeting amongst King on the one hand and Jackson, Johnson and Holland on the other. This was a Show Cause meeting of 12 August.
[184] The termination letter stated that King had “been unable to provide an adequate explanation for your actions.”
[185] The termination letter advised that King’s actions constitute a major breach of the Hunter Valley Operations Procedure “which may result in termination of your employment.”
[186] The termination letter advised that King’s actions are a breach of the RTCA Code of Conduct and the RTCA Workplace Diversity, Harassment and Equal Opportunity Policy.
[187] The termination letter then set out a finding that King had engaged in misconduct, which had been established on the balance of probabilities, and that such misconduct was serious and wilful.
[188] The termination letter advised of the immediate (12 August) termination of King’s employment.
[189] FWA makes the observation that the termination letter does not set out the actions of King said to constitute serious and wilful misconduct.
[190] The original source documents for those actions (allegations by Reynolds and Turner against King) are attached to the witness statement of Mr Graeme Holland, Head of Human Resources at Hunter Valley Operations. (Ex. 26, GH-6 for statement of Reynolds and GH-13 for statement of Turner)
[191] The witness statements setting out the allegations of harassment and intimidation against King are Exhibits 18 (Reynolds) and 19 (Turner).
[192] The Respondent’s Final Submissions (Ex. 31) sets out the allegations of Reynolds and Turner against King and the evidence in support of those allegations.
TURNER ALLEGATIONS AGAINST KING
[193] The allegations by Ben Turner of isolation and harassment against him by King are set out in the Respondent’s Final Submissions. (Ex. 31, pp. 120-142) I will adopt the format of the layout of the allegations contained in Ex.31 for assessing the merits of the allegations.
Deliberately ignoring Mr Turner
[194] The RFS put a submission of King deliberately ignoring Turner between March 2009 (when Turner started at the site) to August 2011 (when King was dismissed). That is, the RFS submitted that King did not engage in any conversation with Turner beyond the bare minimum to get the job done.
[195] For the record, apart from the King-Turner conversation to get the job done, Turner gave evidence that King said hello to him even if, according to Turner, it was a grunted hello.
[196] What the Respondent needs to prove is that the ignoring (if true) was the result of King engaging in conduct to harass/bully because Turner was say, not a Union member or was on an individual contract. An employee may talk to another employee and only to the bare minimum to get the job done. Sometimes the reason for this bare minimum contact is a personality conflict. Even if the reason is say ethnic based or religious based, unless that employee declares their reasoning publicly, then no-one can ever know the reason for the bare minimum contact to get the job done.
[197] Reynolds gave general evidence that he observed King not speaking to Turner during shift starts.
[198] The RFS rely upon evidence of Wild and Collyer that neither observed King speaking to Turner at the start of shifts. But that evidence is not that King was engaging in bullying or harassing of Turner in not speaking to Turner. If Wild or Collyer were of the view that there was something bullying or harassing in King’s conduct at the start of the shift, then presumably one or both would have said something to King at that time.
[199] Reynolds deposed that King told him directly not to speak to scabs like Turner or Link. Given my finding on the credit of Reynolds, I am not able to rely on this assertion.
[200] Accordingly, I find that Reynolds and the Respondent have not made out a case that King deliberately ignored Turner as part of a harassment or isolation campaign.
Excluding Mr Turner from the JHA Process
[201] A safety planning procedure exists at the Hunter Valley Operation (HVO) whereby whenever there are more than 3 persons on a job, employees are required to do a Job Hazard Assessment (JHA). During this process, the task itself, as well as the risks and how those risks will be addressed are discussed by all the employees involved and then recorded in a JHA book. If one employee is not present at the start of the task, when they join the task, one of the employees is required to talk through the JHA with that new employee.
[202] Turner’s evidence is that King excluded him from these processes in two ways.
[203] Firstly, when Turner was assigned to a job with King (or Harris), the latter took the JHA book off elsewhere and did the JHA without Turner.
[204] Although this is his assertion, Turner could not, by his own admission, give a specific example of this occurring. He insisted that this exclusion from the JHA process had occurred but it “was over eight months ago”. (PN 4612) He also gave evidence that where three employees are already working on the job, then those three employees do not have to wait for another employee (say, Turner) who may be delayed. He advised that he turned up late for the JHA processes probably about 50% of the time. (PN 4566-4617)
[205] Secondly, Turner asserted that King (or Harris) would carry out a JHA process and put the JHA book in an unexpected place so that Turner could not find it, or put the wrong date or machine in the JHA book or did not explain the JHA process to him. (PN 5121-5123)
[206] The foregoing evidence was given in re-examination and Turner does not specifically name King but says “they” did the foregoing incidents.
[207] If Turner’s evidence is that he was present at the start of the shift (that is, not late) and he observed other employees doing a JHA process that should have involved him, then why did he not involve himself - that is, stand or sit adjacent/near the employees? I am not certain from the evidence that he is talking about this type of scenario alleged.
[208] When he was late for a JHA process and the JHA book had been put in an unexpected place or the wrong date or machine were entered in the JHA book, then how does he know that one or more of those incidents were (a) deliberate and (b) aimed at him and how does he know, if deliberate and aimed at him, that it was done by King (or Harris) given that he was not there to observe that alleged conduct?
[209] I find that the Respondent/Turner have not made out this allegation.
Put pressure on Mr Turner to join the Union, September 2009
[210] On my reading of the evidence, the above date of “2009” in the RFS is incorrect and should read “2010”.
[211] Turner began working at HVO in March 2009 as a contractor and working the B Crew. In September 2010, it became common knowledge that Turner would be offered employment as an employee with the Respondent. Turner claimed that he was being “haunted by these guys” (King and Harris amongst others) and asked to join the Union because he would be an employee who then had the choice of being on an individual contract or engaged under the collective enterprise agreement (the latter being the preferred choice for Union members).
[212] The evidence discloses that Turner had no difficulty in handling the “pressure”. His evidence is that he raised this “haunted with these guys” with Collyer and asked Collyer to intervene if Collyer saw “these guys” crowding around him. Collyer did so and the group scattered. (Ex. 21, para. 10-11)
[213] Turner’s ability to handle this “pressure”was demonstrated by the one and only conversation that took place between him and Thorpe (U2011/1700). The relevant paragraphs from that decision are extracted below:
[188] “Finally, under the heading of “deliberately ignored Turner”, is the one only conversation (apart from the alleged grunted hellos) between Turner and Thorpe.
[189] As to the one only conversation, this occurred when Thorpe spoke to Turner trying to convince Turner not to sign an individual contract in/around September 2010. Thorpe does not deny that he only had one conversation with Turner. That conversation occurred around September 2010, when Turner was successful in becoming a permanent employee (he had been a contractor from March 2009 when he started at the mine site) and that would require a decision on his part as to whether to be engaged on an individual contract or the collective enterprise agreement. According to Turner, their one only conversation was to the following effect:
“Mr Thorpe: Have you got a few minutes, can we have a chat?
Me: What are the issues. I can’t talk right now, Perry needs me.
Mr Thorpe: Have you decided which way you are going?
Me: I don’t understand the question.
Mr Thorpe: Which way are you going?
Me: What? Going home?
Mr Thorpe: You know the contract type I don’t want you to go the wrong way. We get a lot of discounts.
Me: I don’t feel comfortable talking about this at work. I won’t be making a decision on who is going to be my friend and who is not, you have never made any effort to say hello to me. I don’t know what has changed now but you are not going to be my mate now.
Mr Thorpe: So that is how it is going to be
Me: Yeah. ”
[190] The RFS then makes two points about the above conversation. Firstly, it is an example of harassment. Secondly, if it is not accepted as harassment, then it is evidence of Thorpe “subsequently engaging in a campaign of isolation against Mr Turner regarding this issue.” (FWA emphasis added)
[191] As to the harassment submission, the RFS extract the definition of harassment from the Respondent’s “Workplace Diversity, Harassment & Equal Opportunity Policy”. (Ex. 26, page 13) The definition reads:
“Harassment includes any unwelcome advance or request, offensive comment or action that offends, humiliates or intimidates or may reasonably be expected to do so and/or includes bullying.”
[192] The RFS put a submission that the conversation shows that Thorpe wants Turner to make a certain decision and if Turner does not agree, then there is an implicit threat that Turner’s isolation will continue. Support for that submission was Turner’s evidence that he felt intimidated and pressured by the approach from Thorpe.
[193] I note that Turner’s evidence was that he had “the impression I got it was just pressure to put me into joining the Union ... Well, I felt a bit intimidated. All of a sudden they want to talk to me when they never did before.”
[194] I find that the Turner-Thorpe conversation is not evidence of harassment. If there had been one or more approaches beforehand by Thorpe about joining the Union and Turner had expressly made it clear he did not want any further discussion on the matter, and Thorpe (or anyone else) pursued the Union membership issue subsequently, then a case might be made out for harassment. But given that this is the first time Turner and Thorpe have spoken, then how can there be harassment? The Respondent’s answer to that question is that Turner was being isolated by Thorpe who had been allegedly ignoring Turner. As to that answer, I have already stated that it is not compulsory for one worker to socialise with another worker at work. There is a requirement to communicate in order to get the job done. The persons in authority (Wild and Collyer) observed that Thorpe did not speak to Turner but took that observation no further. Perhaps because it is not compulsory for all workers to socialise with each other at work. The fact of the matter is, that not all workers see eye to eye, for whatever reason. The Respondent needs to show that there is something else at play.
[195] As to Turner feeling “a bit intimidated”, that contrasts with his version of the conversation in which he decisively tells Thorpe “you are not going to be my mate now.” Under cross-examination, he agreed that he “rebuffed” Thorpe and was “effectively telling him to go away.” (Transcript 28/3/12, PN 4456-4458) ”
[214] The foregoing extract as to a one off conversation between Turner and Thorpe, shows that Turner knew how to resist “pressure” and put it into effect: “effectively telling him (Thorpe) to go away” and deciding on the future relationship between the two of them and it was one of isolation by Turner towards Thorpe.
[215] King agreed that he approached Turner about joining the Union at this point in time. Turner’s response was to ask Collyer to intervene if he saw “these guys” hanging around Turner. Collyer did so, and “these guys” scattered and that was that.
[216] I deal later with clear evidence of “pressure” being applied to Turner, but there is no evidence of King, at this point in time, harassing Turner about Union membership.
Third person conversations
[217] The RFS described an incident in early 2011 (subsequent to the ‘pressure” to join Union allegation incident around September/October 2010) on a night shift. Turner was working with King and Sean Logue. The latter two had a conversation described as a third party conversation about joining the Union. The conversation is set out below. The second person to speak is Turner. Then the third party conversation takes place between King and Logue:
[286] The catalyst that led to Reynolds indicating an intention to join the Union happened several months prior to May 2011. That catalyst was his first meeting with Thorpe and working on the B Crew in late November 2010. During their first meeting, Reynolds “lost it” when informed about a Union presence at the site and said of the Respondent, “Why the fuck would these cunts tell me that there is no Union activity when there clearly is fuck this fucken cunt of a joint they have lied to me, a bloke moves from one fucken side of the country to the other on a fucken lie.” (Ex. 18, para 22) On that same shift, he met Scott who asked if Reynolds was going to join the Union. Reynolds responded, “I don’t see there is any choice in it”. (para 23)
[287] Importantly, Reynolds then deposed in the next paragraph, “I did not have any intention at this stage of joining the Union. I figured I had a six month window to find a new job and would just go along with them as if I was going to join.” (A fuller account of Reynold’s first contact with members of the B Crew and relevant issues, is contained in my decision concerning Thorpe’s unfair dismissal application - U2011/1700 - under the headings of “First interaction at the photocopier”; “If you are paid monthly .....”; “Remainder of shift .....” and “Pre-shift discussion, joining the Union”.)
[288] The last quoted paragraph from Reynolds witness statement gives his inner mind viewpoint of having no intention to join the Union. He kept that view point to himself. As far as other persons were concerned, he made it appear that he was going to join the Union. Where, then, is the pressure to join the Union when Reynolds has indicated an intention to join? This is not the scenario of Reynolds saying openly that he was not going to join the Union and then being pursued to join. That scenario would set up an argument for harassment pursuant to the Respondents harassment policy.
[289] Further to the foregoing, is Reynolds own evidence of expressly giving his intention to a Union official (“Keenon”) that he wanted to join the Union. He openly gave that intention when he went down to the Union office to fill in the Union membership application form. (Ex. 18, para 57)
[290] In reviewing the material during my consideration of the three unfair dismissal applications, I realised that there seemed to be a difference in saying, “joining the Union” and “joining the Lodge”. The distinction, if any, and if relevant, was not explained. Is there a separate membership form for joining the Lodge?
[291] For the reasoning set out above, I find that there was no pressure on Reynolds to join the Union.
Ignored Mr Reynolds once he revealed he was not going to end his Individual Contract
[292] The RFS record Reynolds account of a conversation, in early July 2011, with King in which King allegedly asked Reynolds if he was going to join the Union and King could “only push shit for so long” with respect to the blokes only talking to Reynolds because they think Reynolds is going to join the Union.
[293] Given that Reynolds had already joined the Union (two months before this alleged conversation), then the basis of this conversation (about Reynolds joining the Union) is at odds with the evidence. The RFS submitted that this oddity was explicable if “joining the Union” was taken to mean “membership of the Lodge”. That distinction was not brought out in the evidence. Is there, for example, a separate membership application form for joining the Lodge?
[294] King denied saying to Reynolds, “I can only push shit for so long” - in the context of joining the Union (and the evidence showed that Reynolds had already done so.)
[295] There is a conflict in the evidence between Reynolds and King. There is no witness(es). For the reasoning set out above, I find that this allegation has not been made out by Reynolds or the Respondent.
[296] Under the heading of “Ignored Reynolds ...” the RFS put that Reynolds was ignored by King (and others) when he decided he was not going to end his individual contract.
[297] The relevant evidence for consideration of this ignoring Reynolds allegation is that:
(a) Reynolds joined the Union in May 2011;
(b) Subsequently, he wrote an email (with help from Harris) on 31 May to Katrina Mason (HR) advising he wanted to convert from monthly pay (individual contract) to fortnightly pay (collective enterprise agreement);
(c) He advised he had joined the Union and would now like to join the Lodge. (Ex. 18, para 63);
(d)Reynolds at this stage (month of May it would seem) was progressing job applications at other mines;
(e) A couple of days after sending the email to Mason, Reynolds decided to resign and gave a month’s notice from early June - to finish 4 July;
(f) On Monday 6 June Reynolds met with Brett Johnson and Mason and arising out of that meeting was permitted to withdraw his resignation of his employment;
(g) About two weeks later (mid June 2011), Reynolds crib bag had graffiti put on it (LEAVING DONT CHANGE THE FACT YOR A SCAB YOU WILL BE HUNTED DOWN AS LONG AS YOR IN THE VALLEY LOOK OUT SCAB) (Ex. 18, para 84);
(h) The Union delegate, McGregor, talked to Reynolds and said the Union did not support or condone the crib bag vandalism;
(i) King was on annual leave at the time of the vandalism and telephoned Reynolds to say that the vandalism was a low act (Ex. 13, para 22);
(j) Around start to mid July, King spoke to Reynolds about joining the Union (the Lodge?) and according to Reynolds said, “I can only push shit for so long” (King denied);
(k) Around July, Reynolds alleges that King called him, “you fucking piece of shit” (King denied);
(l) And then there was the Curtis Smith incident in late July that led to Reynolds snatching the job. (See Thorpe decision - U2011/1700 at paras 19 to 26).
[298] On the Respondent’s case, the alleged King ignoring Reynolds could only have occurred after Reynolds revealed to King he was not going to end his individual contract. When did Reynolds do that? According to Reynolds, he had a conversation with King around early to mid July about Union membership. It ended with Reynolds deposing he told King, “They (the blokes) don’t need to know fucken any of my business”. (Ex. 18, para 91) In paragraph 93 of his witness statement, Reynolds makes clear that he did not tell King he was ending his individual contract. He deposed as follows: “This was the first time that I suggested to Mr King that I was going to end my individual contract.” (FWA emphasis) The actual conversation in paragraph 91, relied upon by the Respondent, does not even use the term “individual contract”. It has to be inferred. Further, the conversation does not have Reynolds saying to King that he is ending his individual contract.
[299] The condition precedent for the Respondent asserting that King ignored Reynolds once Reynolds said he was going to end his individual contract, does not exist.
[300] I find that Reynolds and the Respondent have not made out a case that King ignored Reynolds.
Mr King harassed Craig Link
[301] The RFS deal with allegations by Reynolds that King harassed Craig Link (a contractor on an individual contract.).
[302] Reynolds claimed that he frequently heard King (and Harris) call Link “mong” (mongoloid). Reynolds deposed that he came to understand that the reason was for Link being so dumb in not joining the Union.
[303] King denied this allegation.
[304] Link did not give evidence in the proceedings.
[305] It seems to me that for King to have harassed Link, then Link would need to know of the harassment in order for Link to say he had been harassed.
[306] There is a conflict in the evidence between Reynolds and King. There is no witness to support Reynolds allegation. For the reasoning set out above, on the issue of credit, I find that Reynolds and the Respondent have not made out a case against King on this issue.
Cutting off Mr Link on the two-way
[307] Reynolds stated that he observed King (and Harris) deliberately cut-off Link when the latter was speaking on the two-way radio. This conduct stopped Link from speaking further. Reynolds also said that he had a conversation with King, in front of Harris, Boyd and Logue, about cutting-off Link and King allegedly said he would keep doing it.
[308] King (and Harris) denied cutting-off Link.
[309] Link gave no evidence in the proceedings.
[310] As already discussed above, Boyd and Logue were also stood down as part of the investigation. The minutes (showing their responses on this issue if asked) were not put into evidence before FWA.
[311] The Respondent submitted that King should have called Boyd or Logue to give evidence to support his denial. I find otherwise. It was a summary dismissal case and the Respondent carried the onus of proving it had the evidence to support that summary dismissal. (See my discussion above about Payne v Parker) In the alternate, if the Employer did not ask Boyd or Logue about this issue, then the Employer cannot benefit from its failure to do so.
[312] There is a conflict in the evidence between Reynolds and King (and Harris) on this issue. For the reasoning set out above on the issue of credit and because the Respondent did not call Boyd or Logue, I find that Reynolds and the Respondent have not made out a case against King on this issue.
Jamming Mr Link’s computer login
[313] Around April 2011, on a night shift, Reynolds claimed he saw King (and Harris) repeatedly enter Link’s computer login ID and incorrect password into work computers. The effect was to prevent Link from accessing the computer.
[314] King (and Harris) denied the allegation.
[315] Link was not called to give evidence in the proceedings.
[316] There is a conflict in the evidence between Reynolds and King (and Harris) on this issue. For the reasoning set out above on the issue of credit, I find that Reynolds and the Respondent have not made out a case against King on this issue.
Mr King - Other
Slept during shift
[317] Reynolds said he saw King (and Harris) sleep during work on night shifts on a number of occasions. He gave examples of their sleeping on the job. Reynolds reported the sleeping allegation to Neil Smith (the then Maintenance Manager) who allegedly asked Reynolds to ring him on his mobile when it was happening in order to catch them in the act. Reynolds deposed he declined to do so as people would know he had reported them.
[318] King (and Harris) denied this allegation.
[319] There is conflict in the evidence between Reynolds and King (and Harris) on this issue. For the reasoning set out above on the issue of credit, I find that Reynolds and the Respondent have not made out a case against King on this issue.
Conclusion on Valid Reason for Dismissal
[320] Having considered all of the material pertaining to the Turner and Reynolds allegations, I find that the Respondent has not made out its case in respect of the Reynolds allegations. As for the Turner allegations, I find that the Respondent has made out a case about King “kicking the table in the crib room - July 2011”. This is the only allegation made out but it is a matter of substance.
[321] The background to the conduct by King, is that Turner had asked and been granted the opportunity to have a separate crib break. He was granted this request because he said that King used to harass him when he was on crib breaks. So, Turner is on a separate crib break to other employees and King came into the crib room. Why? There was no evidence that his crib break had been changed to be the same as Turner’s. King then engaged in conduct that Turner said was intimidation: looking at Turner; eating a bag of chips; making louder noises than usual; kicking a table causing Turner’s table to vibrate; when Turner looked up, King would stop and look away; and when King left the crib room, he bumped Turner’s chair.
[322] I have held that the foregoing conduct took place. Did it constitute a valid reason for dismissal?
[323] The Respondent has a bullying and harassment policy: “Workplace Diversity, Harassment & Equal Opportunity Policy.” (Ex. 26, GH-1, page 11) It says that “Bullying is any form of harassment or vilification that is reasonably likely to injure another person or make that person feel humiliated, intimidated or offended.”
[324] Turner said he felt intimidated by King’s conduct. It seems to me that the conduct that King engaged in within the crib room, is conduct that could be seen as intimidating.
[325] The Respondent has a disciplinary policy: “Disciplinary Procedure”. (Ex. 26, GH-2, page 24) It has three types of conduct headings: “Minor” - “Serious” - “Major”. The latter two can lead to dismissal as an outcome.
[326] Examples of a Major breach of the Respondent’s disciplinary policy is given as:
“Theft
Using abusive or threatening language or physical force, with the intent to harass,
victimise or coerce.”
[327] Arguably, King’s conduct in the crib room had physical force (as in kicking the table) and the other conduct was engaged in for the purpose (intent) of harassing Turner. The element of “intent” is not just what happened in the crib room but the beforehand. King entered the crib room when it was not his crib break. Arguably, he has gone out of his way (intent beforehand) to then engage in certain conduct (further intent) against Turner. It is this double intent that stands out with this crib room conduct.
[328] The conclusion I form, is that this King conduct can be characterised as a Major breach and one that would allow the Respondent to decide to terminate the services of King.
[329] Having considered all of the evidence, and for the reasoning set out above, I find that the Respondent has discharged its onus of establishing that there was a valid reason for the dismissal of the Applicant.
(b) whether the person was notified of that reason
[330] The Applicant was notified of the reason for dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[331] The reason for summary dismissal went to conduct only.
[332] Mr Bukarica submitted that there was a denial of procedural fairness because the Applicants were stood down and only knew that unspecified allegations of intimidation and harassment had been made by Reynolds. That is, the Applicants were not given particulars on the day of their stand down (Thursday, 4 August), nor before their first investigation interview of Friday 5 August or Monday, 8 August. This lack of specifics, said Mr Bukarica, denied the Applicants the opportunity to marshall corroborative evidence in their defence.
[333] Similarly, the Union argued lack of procedural fairness for the Applicants to prepare their defence against the Show Cause letter. Thus, a second investigation interview was held on Thursday, 11 August. Arising out of that meeting, the Applicants were given Show Cause letters and were required to respond by the next day Friday, 12 August. Following that Show Cause meeting, the Applicants were summarily dismissed.
[334] There was, for FWA, an issue about the investigation process. It had the look of a rush to judgement.
[335] Firstly, was the quickness with which the investigatory process took place. Thus, the Applicants were stood down on the Thursday, 4 August. The first interview took place on Friday, 5 August. The three Applicants (and another two employees, Logue and Boyd) were interviewed on Monday, 8 August. Those interviews were in consequence of the Reynolds allegations only which were set down on paper on the prior Thursday, 4 August.
[336] Turner’s allegations were not put down on paper until Tuesday, 9 August. (Ex. 26, GH-13)
[337] The Applicants (and Logue/Boyd) were interviewed again on Thursday, 11 August. The allegations of Turner were then raised with two of the three Applicants. At the conclusion of their respective meetings, the three Applicants were given their Show Cause letters. (Ex. 26, para. 40) There was no delay of a day or so by Holland to reflect upon the large number of allegations and responses. Further, the responses to Turner’s allegations were being given on the same day as the Show Cause letters were given to the Applicants.
[338] Secondly, the rush to judgement look arises from Holland’s consideration (that is, it would appear, no consideration), of King’s defence to Reynolds allegation that he is a storyteller. King raised this defence/allegation at the first interview (Monday, 8 August). It was not a bald assertion. He gave examples including the Anthony Mundine story. (Ex. 26, GH-7, page 73) The consequence of that defence went not only to the veracity of Reynolds allegations but as well, in part, to Turner’s allegations. This is so, because the Respondent relied upon Reynolds as a witness to back up one or more of Turner’s allegations.
[339] When Holland interviewed Reynolds on 4 July, Reynolds told Holland that he told tall stories. (PN 7148) Then Holland was informed by King that King knew of these storytellings and was raising it as a defence. I appreciate that Holland did not have in front of him at that time a witness statement from Reynolds saying that he was now telling the truth about the Mundine story but in reality he was not and which would have alerted Holland that there was a credit issue with Reynolds. But what was done by Holland to check out King’s defence?
[340] Still on this point, what happened after the interviews of the six stood down employees? For example, when say Thorpe denied allegations of Reynolds (and he was the only person making allegations at the time of the first interview), did Holland go back to Reynolds and put Thorpe’s responses to him for responses? If Holland did so, where is the minutes of that meeting? Seems to me that given the seriousness of the allegations and their consequence, and the industrial relations environment, that Holland would want to protect himself from any claim of bias by producing the minutes of say that Holland/Reynolds interview as to Thorpe’s responses.
[341] Thirdly, there are the interviews of Harris. The first interview (on Monday) ended with Holland telling Harris to “fuck off”. That occurred after Holland formed the view that Harris had lied to him twice about whether Harris had been in contact with the other stood- down employees subsequent to their stand-down. But he was not accused of lying in respect of his responses to Reynolds allegations.
[342] The second interview took place on the Thursday. No allegations were raised by Turner against Harris. But after Harris filed his unfair dismissal application, then there were allegations by Turner against Harris. How can that be? Turner put his allegations in writing on Tuesday, the day after the first interview. Under the heading of “Brett Harris”, Turner said: “Brett hasn’t done anything that Ben can identify.” (Ex. 26, GH-13, page 101) Does that say something about the investigation process?
[343] The minutes of the second interview of Harris (Ex. 26, GH-11, page 91) is one page only in length. A reading of that brief meeting shows questioning by the interviewing officers that focuses on the “lies” told by Harris as to whether he had been in contact with any of the stood-down employees. There is virtually no focus on Reynolds allegations.
[344] It is only at the end of the typed notes of the meeting, that a question going to Reynolds allegations is asked but in the context of his “lies”. Steve Jackson is recorded as asking: “What about the bottle of gas, spud gun and logging onto Craig’s IT? Why would we believe what you are saying on the other allegations?” Harris’ response, if any, is not recorded. The next entry is “Meeting Terminated - Show Cause letter issued ...”
[345] The foregoing question shows that the interviewing officers were focussing on the “lies” and not on Reynolds allegations. In the first interview (Monday), Harris gave a response about the missing gas bottle. He told the same interviewing officers that “Chris Giddins told me that he told Perry and Nathan as far as I was aware.” (Ex. 26, GH-9, page 79) Thus, Harris was saying that two supervisory personnel (Wild and Collyer) knew that the gas bottle had been stored in Harris’ locker, before it went missing. Did Holland check with Wild and Collyer if this claim was true? The significance of this question goes to the belated claim of the Respondent that Harris had stolen the gas bottle. Without exploring all of the evidence at this point, why would Harris steal a bottle of gas when he is saying that he understood that his two bosses (Wild and Collyer) knew he had the gas bottle stored in his private locker? It would seem that Harris’ defence, to Reynolds allegation of theft by Harris of the gas bottle, was not checked out between the first and second interviews. It indicates a rush to judgement. If it was checked out and found to be incorrect, why was this not put to Harris at the second interview?
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[346] The applicant was represented by his union official.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal.
[347] This factor has no relevance as performance was not an issue.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[348] This factor was not an issue.
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[349] This was not an issue.
(h) any other matters that FWA considers relevant
[350] Thorpe had been an employee of the Respondent for nearly seven (7) years. He deposed he had never been the subject of a formal written warning in relation to his work performance; had never returned a positive drug or alcohol test and had never been counselled about absenteeism or being late for work. (Ex. 6, paras. 6-7)
CONCLUSION
[351] The Applicant was summarily dismissed by the Employer by letter of 12 August 2011. That summary dismissal followed a suspension of the Applicant and an investigation into the allegations of harassment and intimidation made by Reynolds and Turner.
[352] Given that the dismissal was summary, the Respondent carried the onus of establishing on the balance of probabilities, that the Applicant had engaged in the conduct alleged by Reynolds and Turner.
[353] Fair Work Australia considered the Applicant’s claim that he had been unfairly dismissed by considering the factors set out in Section 387.
[354] I have found that the allegations made by Reynolds have not been made out.
[355] I have found that one allegation only, made by Turner, has been made out. However, that one only conduct falls under a Major breach conduct of the Respondent’s disciplinary policy. I found that the Respondent had a valid reason for the dismissal of King.
[356] Having considered all of the factors set out in Section 387 and all of the evidence and submissions, I decline to intervene in the Respondent’s decision to dismiss the services of Allan King.
COMMISSIONER
Appearances:
M A Bukarica and Mr Thomas of the CFMEU for King
Mr A Longland and Mr Young, solicitors, for the Respondent
Hearing details:
2012
Newcastle
March 26, 27, 28, 29 & 30
May 29
Printed by authority of the Commonwealth Government Printer
<Price code G, PR527507>
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