Mr Brett Harris v Coal & Allied Operations Pty Ltd T/A Hunter Valley Operations
[2012] FWA 6825
•20 SEPTEMBER 2012
[2012] FWA 6825 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Brett Harris
v
Coal & Allied Operations Pty Ltd T/A Hunter Valley Operations
(U2011/1702)
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 - allegations not made out against Applicant - unfair dismissal - orders for reinstatement, lost remuneration and continuity of service
[1] This decision arises from an application by Mr Brett Harris (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) 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 20 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: Alan King (U2011/1699) and Lee Thorpe (U2011/1700).
[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 Brett Harris (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. The employees are engaged on either a collective enterprise agreement or an individual contract.
[13] Mr Brett Harris commenced employment as an apprentice Plant Mechanic on 26 January 2004. He was engaged under the collective enterprise agreement.
[14] Brett Harris worked in the B Crew, Mobile Maintenance Division. The other two applicants, King and Thorpe, 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. Brett Harris was called to a meeting for an unknown reason. Present at the meeting were Steve Jackson (Maintenance Manager), Brett Johnson (Mobile Maintenance Superintendent), Brett Harris and Steve Scott (employee support person). Mr Harris 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, King and Thorpe 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, Brett Harris 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 King and Thorpe.)
[33] During this meeting, Graeme Holland raised various matters with Harris as to his interaction with other fellow employees on the job, in particular, Kaz Reynolds, Ben Turner and Craig Link. He was asked such things as to whether he socialised with Reynolds, Turner, Link, King, Logue and Giddins and for those he did not socialise with (Reynolds, Turner and Link), why not; had he heard Link called by the nickname “mong”; does he talk to Turner and Link; had he called anyone a scab; the contents of his locker and his knowledge about a R134A gas bottle; had he spoken to Chris Giddins since the investigation started; his knowledge about the manufacture of a spud gun as alleged by Reynolds - Harris had no knowledge and said Reynolds is known for his tall stores; did he sleep on the job; Reynolds said Harris and King tried to log onto Link’s computer; his “speak out” against Perry Wild; he had not heard anyone tell Reynolds not to talk to Turner or Link; he had knowledge Reynolds was joining the Union; who had he spoken to since last Friday (5 August - the day after his suspension); and where was he on Friday night - Harris answered at home but after further questioning and then a short adjournment, he said he was out at the RSL Club with Logue and King. (Ex. 26, GH-9)
[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, Brett Harris 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. The duration of the meeting is not recorded and the typed minutes of the meeting takes up one page only. The theme of the questioning to Harris is the truthfulness of his response as to where he was on Friday night and had he talked to others. Arising out of the meeting, Brett Harris was given a Show Cause letter. (Meetings were also held that day for King 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, Brett Harris 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-15) At the conclusion of the meeting, Brett Harris 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 Brett Harris, the General Manager decided that the services of Brett Harris should be terminated. Mr Harris 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 for giving two deliberately dishonest responses during the interview of 11 August, despite being reminded on numerous occasions to be honest in answering questions. The termination letter is silent on any harassment or intimidation of Craig Link. (Ex. 28, TL-2). (Meetings were held with King and Thorpe 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.
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 - Brett Harris
[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 100 to 131 inclusive). The Union’s written submissions also deal with other issues not raised by Reynolds and Turner. The essence of the Union’s case is set out below.
Specific Submissions of Brett Harris
[45] The Show Cause letter of 11 August 2011, raised for Harris’ consideration, why his employment should not be terminated on grounds of harassment of Reynolds and giving dishonest responses in the interview of 8 August. The Show Cause letter said nothing of Harris harassing Turner but this was added to the termination letter. This is a denial of natural justice and should not form part of the grounds for dismissal.
[46] In the proceedings before FWA, the Employer has relied upon other allegations (spud gun; gas bottle and sleeping on the job) that were not set out in the termination letter. Accordingly, the Employer should not be able to rely upon those other allegations for justifying the Harris dismissal.
Alleged Deliberate Dishonest Responses
[47] The Union submitted that Harris did not deliberately lie to the Employer as to (a) whether he had a conversation with Chris Giddins on Friday night, 4 August; and (b) where he was on Friday night. As to (a), Harris testified that he was confused and anxious at this point of the meeting. As to (b), Harris was asked where he was on the night of the Friday. He said honestly he was at home. He had been at the RSL Club but arrived home around 5.00 pm.
The Interview Process
[48] The Union submitted that by the time of the alleged second dishonest response, Holland (Head of Human Resources) had formed the view that Harris was a “liar” and that no matter what Harris said, unless it conformed with the Employer’s perspective, it would be rejected. Holland was overtly hostile, aggressive and intimidatory towards Harris. Holland acknowledged he told Harris to “fuck off”, accepted that he behaved in an “unprofessional” manner and that he had probably breached the Employer’s bullying and victimisation policy.
Allegations by Kaz Reynolds
[49] There is a credit issue against Reynolds.
[50] Reynolds only came up with one incident of alleged harassment and bullying against Harris. Reynolds claimed and Harris denied saying that Reynolds was on a scab agreement.
[51] Reynolds claimed that Harris continued to insult him and call him a scab, even though Reynolds told Harris he was going to join the Union. That simply does not make sense. Harris, as well, denied calling him a scab.
[52] In mid June 2011, someone wrote offensive graffiti on Reynolds crib bag. Harris offered Reynolds support over this issue and that offer is inconsistent with any claim of harassment or bullying.
[53] Reynolds said that Harris slept on the job on a number of occasions. Harris denies this allegation - except for sleeping, with authority, during the crib break.
[54] Reynolds said Harris used Employer time and resources to make a “golf ball gun” (spud gun) and then surreptitiously removed it from the site. Reynolds said that he helped Harris make the golf ball gun and together they took it to another place for later removal from the site. Harris denies this allegation. Harris was not dismissed over this issue and accordingly the Employer cannot rely upon this issue to support the dismissal.
[55] Reynolds said Harris had a gas bottle in his locker and intended to remove it from the site and keep it. Harris denied this allegation. Harris gave an explanation for having the gas bottle and that explanation referred to Craig Link’s knowledge about the gas bottle. The Respondent did not call Link as a witness and a Jones v Dunkel (1959) 101 CLR 298 inference should be drawn against the Respondent. Further, Harris was not terminated for theft of a gas bottle and accordingly the Employer cannot rely upon this issue to support the dismissal.
[56] Reynolds alleges that Harris engaged in harassment and intimidation of Craig Link. These allegations involved ignoring or failing to assist Link, telling others not to talk to Link, referring to Link as a scab when talking to others about him, cutting off Link’s two-way radio and jamming Link’s computer. Harris denied these allegations. Link has not made such allegations and has not appeared in these proceedings. FWA was invited to draw a Jones v Dunkel inference that the Employer did not call Link because the calling of Link would not have assisted the Employer’s case.
[57] As to the Curtis Smith incident, there are three versions as to what Harris allegedly said to Curtis Smith. Harris denies he told Smith not to speak to Turner. The Employer did not rely upon this alleged incident to dismiss Harris. Curtis Smith was not called as a witness by the Employer. A Jones v Dunkel inference should therefore be drawn against the Employer. It is also an alleged incident based on hearsay. FWA should not take this incident into consideration.
Allegations by Ben Turner
[58] Turner’s allegations about harassment and intimidation went to Harris ignoring him; deliberately and frequently leaving Turner out of JHA’s (joint employee(s) safety procedure discussion); stared at Turner once a week (including on one occasion up to 40 minutes); and that Harris was in attendance at the oil spill on Turner incident.
[59] Despite these allegations, Turner told Holland in an interview that Brett Harris has not done anything that Turner can identify.
[60] Harris denies the allegations of ignoring Turner, leaving him out of JHA’s and staring at Turner.
[61] Harris denies Turner’s claim of sleeping on the job - except with authority during the crib break. Harris was not terminated for sleeping on the job and therefore the Employer cannot rely upon this claim to support Harris’ dismissal.
FINAL SUBMISSIONS
For the Respondent
[62] 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.
[63] 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).
[64] 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 - Brett Harris
[65] The Respondent’s case against Brett Harris is set out in its typed Respondent’s Final Submissions (RFS). (Ex. 31, pages 64 to 114 inclusive) The essence of the Respondent’s case against Brett Harris is set out below.
Allegations by Kaz Reynolds
[66] Reynolds said Harris told him he was on the “scab deal”, and did so even though Reynolds said he was going to join the Union. Harris’ denial of the use of the term “scab” by him was implausible.
[67] Harris (and King) pressured Reynolds to join the Union through constant questions. Even after Reynolds joined the Union, the questions continued because Reynolds had not terminated his individual contract and joined the Hunter Valley Operations Lodge. The witnesses Wild, Collyer and Johnson gave evidence that Reynolds reported to them of pressure or questions about joining the Union. Their evidence was corroborative of Reynolds allegation of pressure to join the Union.
[68] Harris ignored Reynolds once Reynolds revealed he was not going to end his individual contract - even though he had joined the Union. The RFS drew a distinction between joining the Union and joining the Lodge. That distinction goes to explaining why Reynolds was still being ostracised and isolated. The Union’s argument that Reynolds had initiated the cessation of interacting with Harris (and King) was to be rejected. The witnesses Wild, Collyer, Johnson gave evidence of Reynolds approach to them around this time (early July 2011) complaining about a conversation he had with King and which led to his isolation by Harris (and King).
Harris harassed Craig Link
[69] Reynolds gave evidence that he frequently heard Harris (and King) refer to Craig Link as “mong” (a.k.a. “mongoloid”) and he understood the reason to be that Link was dumb for not joining the Union.
[70] Harris spoke on the site radio system to sarcastically congratulate Craig Link when Link also spoke on the radio to say he had just finished a job. Link complained about the incident to Wild (Maintenance Supervisor, B Crew) who cautioned Harris. The RFS sets out the relevance of this incident for supporting its case on other issues against Harris.
[71] Reynolds gave evidence that he observed Harris (and King) deliberately “cut off” Link when he was speaking on the two-way radio. Reynolds observed Harris pressing on the microphone button on Harris’ own radio to achieve this “cut-off”.
[72] Around April 2011, on a night shift, Reynolds saw Harris (and King) repeatedly enter Link’s computer login ID and an incorrect password into work computers. This had the effect of preventing Link from logging in.
Harris - Other
[73] Reynolds directly saw Harris make a “golf ball gun” (spud gun) during work time and use materials from work without permission. By his own admission, Reynolds assisted Harris in building this device. During the night shift, Reynolds drove Harris in a work vehicle to an area of the mine that intersects with a public road and Harris concealed the device there for later retrieval.
[74] Reynolds gave evidence that Harris said he was going to take (steal) a R134A gas bottle for his own use.
[75] Reynolds said that Harris (and King) slept on the job on night shift on a number of occasions. The witness, Johnson, recalled that Reynolds reported to him of employees sleeping during work time.
[76] Harris lied during the investigation when he said he had not spoken to Chris Giddins since Friday morning (the day of the suspension). He was challenged on this response and took time out from the interview meeting. After speaking with his support person (Watson), he returned to the meeting and said he must have forgotten but he had spoken to Giddins on the Friday night. Harris’ second lie was that he was not at home on Friday night with his girlfriend but at the RSL Club. Harris’ explanations of being confused and that Holland, the interviewer, was aggressive towards him, were to be rejected.
Allegations by Ben Turner
[77] Turner’s evidence is that from March 2009 (when Turner started at the site) until August 2011 (when Harris was dismissed), Brett Harris did not engage in any conversation with him beyond the bare minimum required for work. Harris (and King) would only grunt a hello to him. Harris told Reynolds not to speak to scabs like Turner.
[78] Harris excluded Turner from the JHA (a joint employee(s) safety procedure talk) process in two ways. Firstly, by excluding him from the process by taking the JHA book elsewhere and did the JHA without him. Secondly, for example, Harris (and King) put the JHA book in an unexpected place so that it could not be easily found. Harris denied this allegation.
[79] Harris told Curtis Smith (an employee of a contractor) not to speak to Turner - if Smith wanted a job at the Hunter Valley Operations. Harris denied this allegation.
[80] Harris (and King) put pressure on Turner to join the Union when it became common knowledge, in September 2010, that Turner would be offered employment directly as an employee with the Respondent. Harris denied talking to Turner about joining the Union.
[81] Turner alleged that it was a frequent occurrence for Harris to stand in groups and stare at him while he worked (in one instance staring at Turner for 40 minutes). Harris denied this allegation.
[82] Turner said Harris was part of a group of employees (that included Logue and King) that purposefully gave Turner an undersized bucket for draining oil from a vehicle. There was an oil spill from the draining and Harris, King and Logue laughed and said such things as, “Oh, you fucking stupid prick, don’t know much do you”. Harris denied being present at this event.
CREDIT OF WITNESSES
[83] 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.
[84] My approach in determining each unfair dismissal application, has been to decide issues on the evidence firstly and, if necessary, decide issues on credit.
[85] 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
[86] 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.
[87] 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)
[88] 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)
[89] 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)
[90] 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)
[91] The Union dealt with at length Reynold’s lie about his involvement with Anthony Mundine.
[92] Reynolds said in his filed witness statement that he exaggerated when he told people that he “had fought with Anthony Mundine. In 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.
[93] 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)
[94] 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.
[95] 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.
[96] 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.
[97] 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.
[98] Reynolds denied being a liar generally and only lied in these circumstances in order to keep in good with Thorpe and others. 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, in order to carry on his lie to Harris and others that he was going to join the Union (when he had no intention of doing so). (He admitted to this Union membership intention as being a lie - PN 3394.) I find that these story tellings have no relevance to Reynolds defence that he was trying to keep in good with Harris and others. His indicating to Harris 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.
[99] Accordingly, in view of all of the above, I find that where there is a conflict in the evidence between Reynolds and Harris, then I prefer the evidence of Harris.
Credit and Ben Turner
[100] 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)
[101] Whatever the foregoing shows, it does not show Turner to be a liar. He may be career minded and inform on his fellow employees to achieve that end, but it does not follow that he is a liar.
[102] Having considered the Union’s submission on the credit of Turner, I decline to accept that submission.
Credit and Brett Harris
[103] The RFS set out a number of points on why an adverse finding should be made about Harris’ credit as a witness. (Ex. 31, 17.8, pages 164-165) I bear those points in mind when considering the allegations against Harris.
[104] Holland’s witness statement significantly raises Harris’ credit in respect of his “First lie” and “Second lie” during the first meeting of 8 August. (Ex. 26, paras. 24 to 32)
[105] The “First lie” went to a question by Holland to Harris as to when he had last spoken to Chris Giddins (the first stood-down employee to be interviewed - Friday, 5 August.) Harris responded he had not spoken with Giddins since Friday morning. Holland challenged this response and suggested he would telephone Giddins. Harris then changed his evidence to he had spoken to Giddins later that Friday.
[106] The “Second lie” went to Holland asking if Harris had seen these other stood-down employees since Friday morning. Harris initially answered he had only seen King and Thorpe. Holland challenged this response. Holland had been informed by a contractor that the contractor had seen Harris with the stood-down employees (more than King and Thorpe) at a dinner. Harris then said he was with King and Logue on the Friday night.
[107] The Respondent characterises these two items as “lies”. If so, Harris did not maintain the “lies”. If Harris had have maintained these “lies” through the two interviews and the Show Cause meeting and the proceedings before myself, then these “lies” would be matters going to my consideration as to his credit. But he did not maintain the “lies” and these “lies” are not the issue for my consideration, to the extent the Respondent submits.
[108] There is another characterisation to these “lies” based on my observation of the demeanour of Harris in the witness box. He presented himself as being smart or cocky. It seems to me that he outsmarted himself in these two issues with Holland. This demeanour does not mean that he is an untruthful witness. In any event, the ‘lies” were not maintained. He corrected his two responses immediately when challenged.
[109] Holland then had to take a step back and objectively assess each allegation made by Reynolds and Harris’ response. It seemed to me, however, that Holland and others took the view that these “lies” meant that the focus of the investigation went onto the “lies” rather than dealing with the allegations and had they been made out. The foregoing commentary arises out of the review of the evidence. Thus, during the first interview Holland responded to the “lies” by telling Harris to “fuck off” as in “You can fuck off out of here”. (PN 7174) The minutes of the second interview show that the focus is still on his “lies” and the concluding question from the investigating officers is “Why would we believe what you are saying on the other allegations?” (Ex. 26, GH-11, page 91)
[110] This focus on the “lies” also has to be juxtaposed against Holland knowing before his meeting with any of the stood-down employees, that Reynolds himself had told Holland that Reynolds is a storyteller and one of his stories was the Anthony Mundine story. If Holland was not told about the Mundine story by Reynolds, he certainly was on Monday 8 August when King told him so during King’s interview. (Ex. 26, GH-8, page 73)
[111] Finally, as to Harris’ demeanour. In my view, Harris was not engaging in “lies”. He merely outsmarted himself by thinking that he is a smart person. I base this observation on my assessment of him in the witness box. There was no need for him to tell ‘lies”. He was free to admit that he had spoken to any and all of the six stood-down employees. This was so, because the Employer appears not to have put a prohibition to those employees about speaking to each other when being stood-down. It was Jackson (Maintenance Manager) who stood them down. (Ex. 24, para 5) His evidence was that he could not remember giving such a prohibition. (PN 6336) Harris was free to talk to the other employees and say (if he was thinking straight) when asked, that he had done so.
ONUS and STANDARD OF PROOF
[112] 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.
[113] 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.
[114] 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.
[115] 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.
[116] During final submissions, two issues arose that I now address.
[117] The first issue went to a difference of opinion between the advocates about the applicability of Regulation 1.07 to unfair dismissal cases.
[118] 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.
[119] 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.)
[120] 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.
[121] 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)).
[122] That submission of Mr Longland appears to be correct. I was not taken to any case law on the point.
[123] 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.
[124] 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.
[125] 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.
[126] 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.”
[127] 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)
[128] I reject that submission for the reasoning set out below.
[129] 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.
[130] The Employer carried the onus to show, on the balance of probabilities, that it had the evidence to support its decisions of summary dismissal.
[131] 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).
[132] 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.)
[133] 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.
[134] 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.
[135] 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.
[136] 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.
[137] 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
[138] Brett Harris filed an unfair dismissal application against his summary dismissal on the grounds of harassment and intimidation of Reynolds and Turner.
[139] 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.
[140] The strong negative views found an outlet by way of graffiti on the toilet walls. But is was not one sided authorship. 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)
[141] 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.”
[142] 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.
[143] 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.
[144] Paragraph (c) and (d) of section 396 have no relevance in this case.
[145] The Applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[146] 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.”
[147] 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.
[148] 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);
[149] 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.
[150] Mr Harris 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 -2)
[151] 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 Harris had engaged in harassment and intimidation against them.
[152] The termination letter referred to a third meeting amongst Harris on the one hand and Jackson, Johnson and Holland on the other. This was a Show Cause meeting of 12 August.
[153] The termination letter stated that Harris had “been unable to provide an adequate explanation for your actions.”
[154] The termination letter advised that Harris’ actions constitute a major breach of the Hunter Valley Operations Procedure “which may result in termination of your employment.”
[155] The termination letter advised that Harris’ actions are a breach of the RTCA Code of Conduct and the RTCA Workplace Diversity, Harassment and Equal Opportunity Policy.
[156] The termination letter then set out a finding that Harris had engaged in misconduct, which had been established on the balance of probabilities, and that such misconduct was serious and wilful.
[157] The termination letter advised of the immediate (12 August) termination of Harris’ employment.
[158] FWA makes the observation that the termination letter does not set out the actions of Harris said to constitute serious and wilful misconduct.
[159] The original source documents for those actions (allegations by Reynolds and Turner against Harris) 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)
[160] The witness statements setting out the allegations of harassment and intimidation against Harris are Exhibits 18 (Reynolds) and 19 (Turner).
[161] The Respondent’s Final Submissions (Ex. 31) sets out the allegations of Reynolds and Turner against Harris and the evidence in support of those allegations.
REYNOLD’S ALLEGATIONS AGAINST HARRIS
[162] The allegations by Reynolds of intimidation and harassment against him by Harris are set out in the Respondent’s Final Submissions. (Ex. 31, pages 81-92) I will adopt the format of the layout of the allegations contained in Ex. 31 for assessing the merits of the allegations.
Called Mr Reynolds a scab
[163] The RFS record that Reynolds claimed that in early 2011, Harris called him a scab arising out of a conversation begun by Harris, who said he had gone out to dinner with his girlfriend and saw Brett Johnson at the same restaurant. Reynolds said he responded, “Do you always to out to tea with the bosses?” Reynolds deposed he said this in a friendly joking way. Reynolds said that Harris responded, “If any cunt was in bed with the bosses it’s you. You are the one on the scab deal.” (Ex. 18, para 50)
[164] Harris acknowledged going out for dinner but denied making the second statement containing the “the scab deal” reference.
[165] The RFS rely upon the witness box responses given by Harris to questions about the meaning of the word “scab” to discredit his defence to this allegation. Thus, Harris said he had never used the term “scab” against anyone and the Respondent submitted that this response was implausible. When asked the meaning of “scab”, he said, “Someone who crosses the picket line”. (Ex. 26, page 78) He gave this definition during his 8 August interview by Holland.
[166] The Respondent produced no other witness to say that Harris had been heard using that term - other than in the crossing the picket line context.
[167] I reject the “scabby” vernacular connection. Harris referred to the gas bottle as “an old scabby bottle of gas”. The use of the term “scabby” was juxtaposed to “old” so as to have a similar meaning.
[168] Turner (the other complainant) makes no allegation that Harris called him a scab.
[169] The Respondent produced no evidence (other than Reynolds allegation) that Harris has used the term “scab” (in order to contradict Harris’ evidence) and that he has used the term and used it in an harassing way.
[170] There is a conflict in the evidence between Reynolds and Harris. Because of my finding as to the credit of Reynolds, I prefer the evidence of Harris. Accordingly, I find that Reynolds and the Respondent have not made out this allegation.
Pressured Mr Reynolds to join the Union through constant questions
[171] The RFS raise the issue of Reynolds being pressured to join the Union. Reynolds witness statement has a number of headings within that statement. Relevantly, he lists two headings to the RFS one only heading of “Pressured Mr Reynolds to join the Union”. Reynolds two headings are: (c) “Joining the Union - May 2011” and (b) “Pressure to switch over continues”. The latter heading is not about pressure to join the Union but to give notice to the Respondent, he no longer wishes to be covered by the individual contract but be covered by the collective agreement.
[172] As to “Joining the Union - May 2011”, Reynolds deposed that he joined the Union in May 2011. His witness statement does not say, under this heading, that he was pressured to join the Union. He deposed, “To try and stall further questions and comments I decided to join the Union”. (Ex. 18, para 55)
[173] 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 Mr 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)
[174] 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 Reynolds 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”.)
[175] 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 Respondent’s harassment policy.
[176] 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)
[177] 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.
[178] 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
[179] The RFS make an allegation that Harris ignored Reynolds when he revealed he was not going to end his individual contract. The evidence from Reynolds witness statement (Ex. 18, paras. 91-95) makes a bald statement that Harris, King and others ignored him when he made his intention known.
[180] But there is no evidence by Reynolds as to when he told Harris as to his decision to not end his individual contract - if indeed he told Harris (and King and others). Even if Reynolds did expressly tell Harris (King and others) that he had changed his mind about ending his individual contract, then he did so in July 2011. About 3 to 4 weeks later, Harris and King were stood-down. So, the ignoring (whatever that entailed) happened over about 3 to 4 weeks.
[181] I find that this allegation has not been made out and I prefer the evidence of Harris (and King) as to their denial of the allegation.
Called Craig Link “mong”
[182] The RFS deal with allegations by Reynolds that Harris (and King) frequently called Link “mong” (mongoloid). Reynolds speculated that the reason was for Link not joining the Union.
[183] The Respondent relies upon the responses of Harris to submit that Reynolds allegation should be upheld.
[184] During the investigation meeting of 8 August 2011, Holland (GH) asks Harris (BH) if he has heard of the term “mong” and the Respondent submitted that the exchange between Holland and Harris showed that Harris was attempting to avoid the question.
“GH: have you heard Craig Link’s nickname mong.
BH: no, I have never used it.
GH: I never asked if you have used it but have you heard it.
BH: never heard him called that.
GH: are you sure.
BH: to be honest I couldn’t tell you who has said that.
GH: why is it they call him that.
BH: don’t know. ”
[185] I reject the Respondent’s claim that Harris was being evasive. As indicated earlier in my assessment of his demeanour, Harris presented himself as being smart - or at least he thought so. That is all that I make of the above exchange extract.
[186] There is a conflict in the evidence between Reynolds and Harris, and because of my credit finding against Reynolds, I prefer the evidence of Harris.
Sarcastic “congratulations” comment
[187] The RFS record an incident for which Harris was cautioned by Wild (Maintenance Supervisor) for a comment made over the two-way radio.
[188] Craig Link reported over the two-way that he had just finished a job, the work he had done and the current status of the machine - as was the proper practice according to the RFS. Harris then spoke on the radio and allegedly in a very sarcastic tone said, “Oh, congratulations”.
[189] Under cross-examination, Harris said his comment was two-way radio banter and slightly sarcastic. (PN 1977-1978)
[190] The RFS state that this incident in itself is not a ground for dismissing Harris but the incident had relevance to the proceedings: (a) it is consistent with the allegations that Harris made derogatory remarks about Link and harassed Turner; (b) Harris’ manner in responding to the allegation (his witness statement and witness box testimony) is consistent with the proposition that he is lying; and (c) Harris’ manner in responding to the allegation shows that he has no remorse for his bullying campaign against Reynolds and Turner.
[191] I note the foregoing commentary but will decide each allegation on the evidence put forward to support each allegation.
Cutting-off Mr Link on the two-way
[192] Reynolds stated that he observed Harris (and King) 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.
[193] Harris (and King) denied cutting-off Link.
[194] Link gave no evidence in the proceedings.
[195] As already discussed above, Boyd and Logue were also stood down as part of the investigation. Presumably there were minutes of their interviews. If so, the minutes (showing their responses on this issue) were not put into evidence before FWA. Why not?
[196] The Respondent submitted that Harris 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 on 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.
[197] There is a conflict in the evidence between Reynolds and Harris/King 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 Harris on this issue.
Jamming Mr Link’s computer login
[198] Around April 2011, on a night shift, Reynolds claimed he saw Harris (and King) repeatedly enter Link’s computer login ID and incorrect password into work computers. The effect was to prevent Link from accessing the computer.
[199] Harris (and King) denied the allegation.
[200] Link was not called to give evidence in the proceedings.
[201] There is a conflict in the evidence between Reynolds and Harris/King 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 Harris on this issue.
Golf ball gun
[202] The RFS record that Reynolds directly saw Harris make a “golf ball gun” (also called a spud gun) during work time and use materials from work without permission of his Employer, around December 2010. (Ex. 18, paras. 36-40) The device was welded together at a welding station in the workshop. Reynolds by his own admission, said he assisted Harris building the golf ball gun.
[203] Reynolds further claimed that after the gun was finished, and during the shift, Reynolds drove Harris in a work vehicle to an area of the mine site that intersects with a public road. Harris then hid the gun in a bush and said he would come back later to pick it up.
[204] Reynolds also claimed that Harris showed him a video of Harris using the gun to puncture a washing machine.
[205] Harris denied during the 8 August interview of manufacturing a spud gun as it was then called.
[206] There is a conflict in the evidence between Reynolds and Harris. There is no witness(es) to the foregoing allegations. For the reasoning set out above on the issue of credit of Reynolds, I prefer the evidence of Harris. I find that Reynolds/the Respondent have not made out a case against Harris on this issue.
R 134A gas
[207] The RFS record that Reynolds gave direct evidence that, around June 2011, he saw a bottle of R 134A gas in the locker of Chris Giddins (another employee in B Crew). The gas is used in the air-conditioning systems for vehicles.
[208] Reynolds asked Giddins about the bottle in the presence of Harris. Giddins said that he was going to take the bottle off site and use it for cash jobs on private cars.
[209] Later than shift, Harris told Reynolds that Harris was going to take the bottle himself (as he was keeping it in his locker).
[210] The Respondent submitted that the foregoing represented that Harris was going to steal a bottle of air-conditioning gas from his Employer.
[211] During the investigation meeting of 8 August, Harris said that Giddins asked him to store the gas bottle in his (Harris’) locker because Giddins’ locker is more exposed to the sun. Harris stored it in his locker. A week or two before the investigation meeting, Harris put the gas bottle in the back of a ute for attending to a job on site as he thought he might need the gas bottle. However, he said, that was the last time he saw the gas bottle. He did not know what then happened to it. (Ex. 10, para 29)
[212] Because Harris confirmed during the 8 August investigation meeting, the presence of a gas bottle in his locker, then this allegation of Reynolds cannot be dismissed on the basis of my credit finding against Reynolds.
[213] Under cross-examination, Harris agreed that the gas bottle was probably a foot and a half wide and two and a half feet high (PN 2067); the employer has cradles or trolleys for the storage of these gas bottles (PN 2072); and the gas bottles should be kept on these trolleys (PN 2107).
[214] Harris agreed under cross-examination that he had an air-conditioning licence which he obtained around February 2010. (PN 2087-2088)
[215] Harris agreed that the gas from the gas bottle could not be used to do “top ups” of air-conditioning systems out in the field (the mine site) but disputed when he became aware of that fact. He agreed that the Employer used a contracting company to do “top-ups” in the field. (PN 2114-2120)
[216] During the investigation meeting of 8 August, Harris said he put the gas bottle in the back of a ute to do an air-conditioning job down in the pit (the mine site). (Ex. 26, page 79)
[217] Mr Longland put to Harris that he had stolen the gas bottle. Harris said he had no reason to steal the bottle. (PN 2122)
[218] In the first interview (Monday), Harris gave a response about the missing gas bottle. He was asked if he had told anyone that the bottle was in his private locker. He told Holland 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 as far as he was aware, the 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. I say belated because this missing gas bottle issue was not relied upon by the Employer as a reason for Harris’ dismissal.
[219] It was up to Holland to check out Harris’ response. Did he do so?
[220] Although it is not a good look for Harris to store company property in his private locker, I have evidence from Harris that as far as he was aware, his supervisors Wild and Collyer were aware of this storage. If that is so, it would make no sense for Harris to then steal the gas bottle because Wild and Collyer knew that it had been in his possession in his private locker.
[221] Reynolds deposed that the gas bottle had not been signed out (per a record of equipment at the site) and by not signing out the gas bottle, nobody would realize it was missing. (Ex. 18, para. 73) The problem with this claim is that Harris gave evidence, during the first interview, that as far as he was aware, Wild and Collyer knew of its whereabouts.
[222] The raising of this gas bottle issue as a belated reason for dismissal, also suggests, at least, a rush to judgement per the investigation process of a serious allegation..
[223] The Respondent has made a serious allegation of theft against Harris (after he was dismissed). The strength of evidence required to sustain an allegation of theft, will require a higher degree of probability than other allegations made against Harris.
[224] Harris’ response suggesting Wild and Collyer have knowledge of the gas bottle’s whereabouts and silence from Wild and Collyer on the point, causes me to find that the Respondent has not made out its case of theft against Harris.
Sleeping at work
[225] Reynolds said he saw Harris (and King) 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.
[226] Harris (and King) denied this allegation.
[227] There is conflict in the evidence between Reynolds and Harris/King 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 Harris on this issue.
TURNER’S ALLEGATIONS AGAINST HARRIS
[228] The allegations by Turner of intimidation and harassment against him by Harris are set out in the Respondent’s Final Submissions. (Ex. 31, pages 68-81) I will adopt the format of the layout of the allegations contained in Ex. 31 for assessing the merits of the allegations.
Ignoring Ben Turner
[229] The RFS puts a submission of Harris deliberately ignoring Turner between March 2009 (when Turner started at the site) to August 2011 (when Harris was dismissed). That is the RFS submitted that Harris did not engage in any conversation with Turner beyond the bare minimum to get the job done.
[230] For the record, apart from the Harris-Turner conversation to get the job done, Turner gave evidence that Harris said hello to him even if, according to Turner, it was a grunted hello.
[231] What the Respondent needs to prove is that the ignoring (if true) was the result of Harris 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.
[232] Reynolds deposed that Harris 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.
[233] Reynolds gave general evidence that he observed Harris not speaking to Turner during shift starts. Turner gave evidence that Harris did say hello, even if it was a grunted hello.
[234] The RFS relies upon evidence of Wild and Collyer that neither observed Harris speaking to Turner at the start of shifts. But that evidence is not that Harris 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 Harris’ conduct at the start of the shift, then presumably one or both would have said something to Harris at that time.
[235] I find that Turner and the Respondent have not made out a case that Harris deliberately ignored Turner as part of a harassment or isolation campaign.
Excluded Mr Turner from the JHA process
[236] 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.
[237] Turner’s evidence is that Harris excluded him from these processes in two ways.
[238] Firstly, when Turner was assigned to a job with Harris (or King), the latter took the JHA book off elsewhere and did the JHA without Turner.
[239] 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)
[240] Secondly, Turner asserted that Harris (or King) 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)
[241] The foregoing evidence was given in re-examination and Turner does not specifically name Harris but says “they” did the foregoing incidents.
[242] 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.
[243] 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 Harris (or King)?
[244] I find that the Respondent has not made out this allegation.
Told Curtis Smith not to speak to Mr Turner
[245] The RFS refer to the Curtis Smith incident which became the catalyst for the summary dismissal of the three applicants for unfair dismissal - Thorpe, King and Harris. The incident is set out under Background within this Decision (see paragraph 19 and following). The incident began when in late July 2011, Curtis Smith (an employee of a contractor and working in B Crew) mentioned to Turner that Harris had told Curtis Smith not to speak to Turner who reported the conversation to Collyer who reported the conversation to Wild who spoke to Curtis Smith for confirmation.
[246] Wild deposed he spoke to Curtis Smith who did not want to get involved in this matter/enquiry. Wild wanted to know “for his own reference” who had made the statement of not talking to Turner. Curtis Smith said he was told that if he ever wanted a permanent job, it would be better he did not talk to Turner. Curtis Smith did not name who told him this. Wild again asked “who?” Curtis Smith replied that he did not want to respond. Wild then said, “This is just for my personal information Curtis, so I can keep an eye on things”. Curtis Smith responded it was Brett Harris. (Ex. 20, para. 23)
[247] Wild then told Brett Johnson. (Ex. 20, para. 24)
[248] Brett Johnson discussed the incident with Holland (Head of HR) and it was agreed that Kerry Wild (CFMEU President) would be informed so that the CFMEU could speak to the employees themselves and tell them this harassment was not acceptable. Kerry Wild was so informed at a meeting with Johnson and Holland. Kerry Wild accepted the request to talk to the employees. The meeting of the employees took place on the weekend. (Ex. 25, paras. 16-17)
[249] Harris denied that he told Curtis Smith not to talk to Ben Turner. (Ex. 11, para. 12 and 44)
[250] The Respondent submitted that Harris’ denial should not be accepted, even though the evidence against Harris was hearsay.
[251] The Respondent is correct in stating that the evidence is hearsay. Curtis Smith is reporting what he says Harris said to him. This evidence does not tell me what Harris would actually say if he gave evidence. He did give evidence and he denied the allegation.
[252] Curtis Smith was not called as a witness and so his allegation could not be tested in the witness box.
[253] I find that this allegation has not been made out by the Respondent.
Pressure to join the Union
[254] 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).
[255] 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. Collier did so and the group scattered. (Ex. 21, para. 10-11)
[256] Turner’s ability to handle the “pressure” was demonstrated by the one and only conversation that took place between him and Thorpe (who was the applicant in U2011/1700). The relevant paragraphs from that Thorpe decision are extracted below:
[229] Finally, under the heading of “deliberately ignored Turner”, is the one only conversation (apart from the alleged grunted hellos) between Turner and Thorpe.
[230] 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. ”
[231] 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.” (emphasis added)
[232] As to the harassment submission, the RFS extracts 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.”
[233] The RFS puts 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.
[234] 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.”
[235] 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.
[236] 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.” (PN 4456-4458)
[257] My view about that evidence from the Thorpe decision is that Turner was able to handle the “pressure”. Turner was not approached again by Thorpe.
[258] Harris denied that he ever spoke to Turner about Turner joining the Union (PN 1752)
[259] Turner’s witness statement does not relate a specific conversation between himself and Harris about pressure to join the Union. (Ex. 19, paras. 19-24)
[260] I find that there is no evidence of Harris pressuring Turner to join the Union. Accordingly, this allegation by the Respondent has not been made out.
Staring at Mr Turner
[261] The RFS records that Harris and others would stand around in groups and stare at Turner whilst he was working. Turner said that on one occasion, Harris (King and Boyd) stared at him for 40 minutes whilst he was servicing a dozer. He deposed he found this staring ‘very disconcerting” and that the staring occurred once a week when he became an employee. (Ex. 19, paras. 25-28)
[262] Reynolds gave evidence about this group (Harris and King included) staring and he described Harris giving Turner “death stares” (did not break eye contact with Turner). I am not able to rely on Reynolds evidence because of my credit finding about him.
[263] Harris denied he engaged in such staring conduct.
[264] King denied he engaged in such staring conduct.
[265] There is, thus far, a conflict in the evidence between Turner on the one hand and King/Harris on the other. The other named perpetrator of the staring allegation for 40 minutes is Boyd who was interviewed by the Respondent. Thus the Respondent had knowledge of what evidence Boyd could give on this issue. I rely upon my discussion above on Payne v Parker to find that the Respondent should have called Boyd to settle the conflict in the evidence. I draw a Jones v Dunkel inference against the Respondent for failing to call Boyd.
[266] There is a conflict in the evidence and having regard to the Jones v Dunkel inference drawn above in not calling Boyd, I find that the Respondent has not made out this allegation against King. If the Respondent did not ask Boyd questions about this allegation, then I find (as discussed above) that the Respondent cannot rely upon its own failure to ask Boyd questions on this issue to gain a benefit adverse to Harris.
[267] Accordingly, this Turner/Respondent allegation has not been made out.
[268] I also find it implausible that a group of supervised workers could stare and be idle for 40 minutes without their supervisor(s) noticing.
In group that purposefully gave Turner undersized bucket
[269] The RFS record that in 2009, Sean Logue gave Turner an undersized bucket (10 litres) and asked him to empty the final drive on a mining vehicle. Turner said in evidence that he asked if the bucket would be big enough and was told “yes”. (PN 4639) He deposed he did not know that the capacity of the drive was 140 litres. When he went to empty the drive, he had oil pouring down into a 10 litre bucket. He got the plug back into stop the oil but only after oil spillage on the ground and himself.
[270] Turner deposed that Harris, Logue and King were standing in a group watching this incident unfold. He heard someone (unknown) say, “Oh, you fucking stupid prick. Don’t know very much do you?” (Ex. 14, para 8)
[271] Harris denied any knowledge of the event (and was not present at the time). (Ex. 14, para 8)
[272] The heading for this allegation against Harris (and King) is that both of them were in a group (which included Logue) that purposefully gave Turner an undersized bucket. Turner, however, does not assert that those three employees gave him a bucket. He only asserts that Logue did. Even so, in another sense, it could be asserted that the group purposefully gave him an undersized bucket, if Turner gave evidence that King, Harris and Logue spoke openly in front of Turner about giving him a 10 litre bucket (which was undersized for the job at hand). But as far as I am aware, there was no such evidence and so the heading for this allegation is incorrect.
[273] Even if Harris (and King) were present - and in the absence of a group purposefulness - then if Harris and/or King laughed then Harris and/or King did so in consequence of Logue’s alleged conduct. Their laughter was not a ground for a finding of misconduct by the Respondent and therefore I do not need to consider this matter any further.
Conclusion on Valid Reason for Dismissal
[274] Having considered all of the evidence, and for the reasoning set out above, I find that the Respondent has not 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
[275] 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
[276] The reason for summary dismissal went to conduct only.
[277] 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.
[278] 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.
[279] There was, for FWA, an issue about the investigation process. It had the look of a rush to judgement.
[280] 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.
[281] Turner’s allegations were not put down on paper until Tuesday, 9 August. (Ex. 26, GH-13)
[282] 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.
[283] 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.
[284] 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?
[285] 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.
[286] 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.
[287] 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?
[288] 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.
[289] 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 ...”
[290] 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
[291] 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.
[292] 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
[293] 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
[294] This was not an issue.
(h) any other matters that FWA considers relevant
[295] 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
[296] 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.
[297] 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.
[298] Fair Work Australia considered the Applicant’s claim that he had been unfairly dismissed by considering the factors set out in section 387.
[299] After deliberating on the evidence, Fair Work Australia found that there was not a valid reason for the dismissal of the Applicant. Taking into account all of the evidence and requirements of the Act, I find that the summary dismissal of the Applicant was unjust: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465.
REMEDY
[300] The relevant sections of the Act in relation to the remedy of reinstatement sought by the applicant are:
“390 When FWA may order remedy for unfair dismissal
1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
b) The person has been unfairly dismissed (see Division 3).
2) FWA may make the order only if the person has made an application under section 394.
3) FWA must not order the payment of compensation to the person unless:
a) FWA is satisfied that reinstatement of the person is inappropriate; and
b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as application for remedies.
391 Remedy – reinstatement etc.
Reinstatement
1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
a) Reappointing the person to the position in which the person was employed immediately before the dismissal; or
b) Appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
a) The position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
b) That position, or an equivalent position, is a position with an associated entity of the employer;
The order under subsection (1) may be an order to the associated entity to:
c) Appoint the person to the position in which the person was employed immediately before the dismissal; or
d) Appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
a) The continuity of the person’s employment;
b) The period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
a) The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
b) The amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[301] As to the foregoing statutory criteria, I am satisfied that: the Applicant was protected from unfair dismissal at the time of being dismissed: s.390(1)(a); that the Applicant was unfairly dismissed: s.390(1)(b); and that the Applicant had made an unfair dismissal application: s.390(2).
[302] The Applicant seeks reinstatement. I am satisfied that reinstatement is appropriate given the circumstances of the case, and my consideration of the practicability of reinstatement raised by the Respondent. The order for reinstatement is to be to the position occupied by the Applicant immediately prior to his summary dismissal: s.391(1)(a).
[303] It is appropriate that I make an order to restore lost pay: s.391(3). During final submissions, the advocates agreed to confer and work out amongst themselves the monetary impact of this order given that Thorpe has been earning other remuneration since his summary dismissal and such remuneration would need to be deducted from the remuneration he would have received had he not been summarily dismissed from his employment.
[304] I consider that there should be an order to maintain the Applicant’s continuity of service with the Respondent: s.391(2).
COMMISSIONER
Appearances:
M A Bukarica and Mr Thomas of the CFMEU for Harris
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}, PR527762>
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