Mr Gregory Macklin v BHP Coal Pty Ltd

[2018] FWC 7429

[2018] FWC 7429

FAIR WORK COMMISSION

DECISION

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

Mr Gregory Macklin
v
BHP Coal Pty Ltd
(U2018/6955)

COMMISSIONER HUNT BRISBANE, 31 DECEMBER 2018

Application for an unfair dismissal remedy – refusal of direction issued by Supervisor – reasons for dismissal included more than that stated by respondent - no valid reason for the dismissal – period of 38 years’ service – reinstatement and backpay ordered

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

[2] There are no jurisdictional objections to determine. While Mr Macklin’s annual earnings were approximately $152,000, in excess of the high income threshold to bring a claim of unfair dismissal, he was employed pursuant to the BMA Enterprise Agreement 2018 (the 2018 Agreement). The application was made within the 21 day statutory time limit.

[3] The only matter that I must determine is whether Mr Macklin’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act, and as a result, unfair.

Background

[4] Mr Macklin commenced employment with BHP on 4 February 1980. He held several different positions of employment with BHP during the 38 years of his employment. At the time of his dismissal on 28 June 2018, Mr Macklin’s primary duties were that of a Grader in BHP’s coal mining department at the BMA Goonyella Riverside Mine (Goonyella). At the time of his dismissal Mr Macklin had worked as a Grader for BHP for more than 20 years. 1

[5] Mr Macklin is 60 years old.

[6] Mr Macklin was also qualified as a trainer/assessor for any coal mining workers who needed to be trained and/or assessed. Mr Macklin’s duties in that respect mostly involved training or assessing workers on Grader, Wheel Dozer and Track Dozer machines. At the time of his dismissal Mr Macklin had performed duties as a trainer/assessor for approximately 17 years. 2

Hearing

[7] The matter was listed for hearing in Mackay, Queensland on 15 and 16 November 2018. Mr Macklin was represented by Mr Rowan Anderson, Senior Legal Officer of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). BHP was granted leave to be represented by Mr Bilal Rauf of Counsel, instructed by Herbert Smith Freehills (HSF).

[8] The hearing of this matter could not be concluded in Mackay and a third day of hearing was conducted in Brisbane on 29 November 2018.

[9] The following people appeared and gave evidence at the hearing:

•  Mr Gregory Macklin;

•  Mr Simon West, Mine Employee at Goonyella and Lodge President of CFMMEU Goonyella Riverside Lodge;

•  Mr Colin Nelson, Mine Employee at Goonyella and Lodge Secretary of CFMMEU Goonyella Riverside Lodge;

•  Ms Melissa Mouat, Supervisor – Coal Mining at Goonyella;

•  Mr Lachlan McNamara, Superintendent – Coal at Goonyella;

•  Mr Phillip Rivers, Supervisor – Coal Mining at Goonyella.

[10] A witness statement was given by Ms Rosemary Shanks, Trainer and Assessor, Sharp Training Pty Ltd (Sharp) in support of BHP. Ms Shanks’ evidence related to a training course she conducted 29–31 May 2017, attended by Mr Macklin. Ms Shanks was not required for cross-examination.

Disciplinary Guide

[11] BHP’s process for dealing with allegations of misconduct and disciplinary action is set out in the ‘BMA Guideline to Fair Play Policy’ (the Guide). The Guide sets out the following four-step disciplinary process to be applied where an employee is found to have engaged in misconduct (apart from serious misconduct): 3

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

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

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

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

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

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

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

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

[13] The Just Culture Process is completed using the ‘Just Culture Decision Tree’, which appears as an annexure to the Guide. ‘Unintentional’ errors are categorised as ‘slips’, ‘lapses’ or ‘mistakes’. ‘Intentional’ errors are described as either: 4

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

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

Disciplinary record

[14] The oldest disciplinary record held by BHP on Mr Macklin is from 27 August 2010 when he was issued with a show cause letter for failing to report for duty on 1 August 2010. The show cause letter reveals that Mr Macklin had been issued with the following earlier warnings:

(a) 19 December 2009: Step 1 verbal warning for failing to report equipment damage in accordance with site procedures;

(b) 21 July 2010: Step 2 written warning for having an extended crib break on two occasions in breach of the terms and conditions of employment;

(c) 22 July 2010: Step 3 written warning for failing to present to work on time in breach of the terms and conditions of employment.

[15] On 14 March 2011 Mr Macklin was issued with a Step 3 final written warning for breaching BHP’s Code of Conduct on 26 February 2011. No further detail is in the final written warning. It appears that the final written warning was issued as an incident had occurred within 12 months of the Step 3 written warning having been issued at [14(b)] above.

[16] On 27 August 2013 Mr Macklin received a Step 2 written warning for breaching the BHP Charter Values and Code of Conduct after raising his voice, and pointing and swearing at a supervisor during a meeting about work performance on 21 August 2013.

[17] On 17 October 2014 Mr Macklin received a Step 1 counselling for breaching the relevant enterprise agreement. He had stopped for a crib break and did not enter the delay into the time recording system.

[18] On 18 March 2016 Mr Macklin received a Step 3 final written warning for breaching a Safe Operating Procedure on 21 February 2016. The final written warning was issued due to the way Mr Macklin spoke to a female bus driver, and after having been reminded of his obligation to wear a seat belt. I shall return to this issue in more detail later in this decision.

[19] On 14 August 2017 Mr Macklin was issued with a further final written warning for his conduct at the training course he attended between 29 - 31 May 2017 run by Ms Shanks as per [10]. I shall also return to this issue in more detail later in this decision.

[20] Mr Macklin was dismissed on 28 June 2018 for an incident that occurred on 28 May 2018.

Mr Macklin’s evidence

[21] During his employment Mr Macklin informed several supervisors, including Ms Mouat, that he did not want to provide training and assessment for BHP employees operating trucks. Mr Macklin stated that the reason for his preference was that Graders, Wheel Dozers and Track Dozers were the machines that he primarily worked with, and he considered himself particularly skilled in the operation of those machines as opposed to trucks. He informed Ms Mouat that he would prefer not to provide training on trucks unless absolutely necessary. Mr Macklin understood that Ms Mouat was ‘fine with that’. Mr Macklin did not recall the date of his discussion with Ms Mouat. 5

[22] As at 28 May 2018 his direct supervisor was Mr Rivers. Ms Mouat also supervised the crew in which Mr Macklin worked, but she was not present during the incident of 28 May 2018. 6

[23] Mr Macklin stated that he considered his relationship with Mr Rivers to be good. He would ordinarily have contact with Mr Rivers at the start of a shift or during pre-start meetings. However, Mr Macklin was usually left to complete his duties without further contact from Mr Rivers, which Mr Macklin understood was due to his experience and Mr Rivers’ and Ms Mouat’s confidence in his abilities. 7

[24] Mr Macklin understood that Mr Rivers reported directly to Mr McNamara. Mr Macklin did not recall ever having direct contact with Mr McNamara prior to Mr McNamara’s investigation of the 28 May 2018 incident, although he had seen him around the Goonyella worksite on occasion.

28 May 2018

[25] On 28 May 2018 Mr Macklin attended his worksite at approximately 6.00am. He worked on a Wheel Dozer that morning, without incident. At approximately 11.00am, Mr Rivers contacted him via two-way radio, and the following was said: 8

Rivers: Have you had crib? When are you having crib?

Macklin: On my way back in now.

Rivers: After crib, come and see me, got another job for you to do.

Macklin: Yep, will come and see you.

[26] Following the conversation with Mr Rivers, Mr Macklin was relieved by another BHP employee and he drove back to the mining crib hut in a light vehicle for his crib break. Mr Macklin stated that the crib hut is located adjacent to the Supervisors’ office and the two rooms are adjoined through a set of double doors. Mr Macklin entered the crib hut and had a short break before entering the Supervisors’ office.

[27] Mr Macklin approached Mr Rivers and both men remained standing. Mr Macklin’s recollection of the conversation is as follows:

Rivers: I want you to RPL/train a contractor on a truck.

Macklin: Well no, I don’t train contractors. I would resign as a [trainer/assessor] if I had to train contractors.

I don’t train contractors because I don’t believe I’m required to and because I don’t want to. 9

[28] The acronym ‘RPL’ refers to a ‘Recognition of Prior Learning’; a process by which a worker’s prior knowledge and existing competency is assessed. If employees are experienced in working at mine sites, and working with relevant vehicles and machinery, they need to be assessed for their prior learning before they can safely perform the work. Trainer/assessors are authorised under the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act).

[29] The contractor referred to was an employee of Downer EDI Limited (Downer). It is important that it is understood that there are typically three types of mine workers:

(a) directly employed BHP employees;

(b) labour hire employees;

(c) contractor employees such as Downer or Hastings Technology Metals Ltd.

[30] Mr Macklin stated that at no time during the conversation were any voices raised. His evidence is that Mr Rivers did not say to him that he had to do as he asked; nor did he say it was a direction. It was not stated to him that there would be consequences if he did not assess the contractor.

[31] Mr Macklin’s evidence is that at the time of the conversation he genuinely believed that he was not required to train or assess contractors under the terms and conditions of his employment. Mr Macklin stated that, had he understood at the time that he was required to train or assess contractors, and he had been directed to do so by Mr Rivers, he would have agreed to train or assess the contractor. Mr Macklin could not recall any previous occasion when he had been asked to train or assess a contractor. 10

[32] Mr Macklin stated that he did not personally agree with the way that contractors and labour hire workers are used by BHP at Goonyella. However, despite his objections, if he thought he was obliged to train or assess contractors, then he would have done so. Mr Macklin stated he had, on previous occasions, been asked to train labour hire employees working as part of his crew, and he had agreed to train those labour hire employees, despite his personal disagreement with BHP’s use of labour hire employees at Goonyella. 11

[33] Nothing further was said by Mr Rivers. Mr Macklin returned to the crib hut and had another cup of tea. Mr Macklin stated his intention was to finish his cup of tea and then approach Mr Rivers to be allocated a task to perform for the remainder of the shift.

[34] Near to the end of Mr Macklin’s crib break, Mr Rivers approached him in the crib hut and sat across from him. A conversation to the effect of the following took place:

Rivers: Come on mate, I really need you to do this, it would help me out.

Macklin: No, I don’t train contractors that will take my job.

Rivers: Well in that case, I’ll have to get you to hop in a truck for the rest of the day while I make other arrangements.

Macklin: Yep, that’s no problem at all.

[35] The precise wording and characterisation of the above conversation is central to the dispute in this matter. In this decision, the events of 28 May 2018 as set out above are referred to as “the 28 May 2018 incident”.

[36] Mr Macklin’s evidence is that Mr Rivers then left. Again, he stated that the conversation was not argumentative, and neither of them had raised their voices. Mr Macklin did not consider what Mr Rivers had said to him during the second conversation constituted a direction. Further, Mr Rivers did not explain that there would be consequences if he failed to assess the contractor.

[37] Mr Macklin considered the matter to be concluded, and he was assigned to work on a truck for the remainder of the day. His preference is to work on the Grader, but he understood that Mr Rivers needed to move people around, and Mr Macklin did not object to be assigned the truck.

[38] Mr Macklin worked for the remainder of the day and nothing further was said to him. He took a second crib break in the crib hut later in the day, but did not see Mr Rivers on this occasion.

29 May 2018

[39] On 29 May 2018 Mr Macklin attended for work at his usual time at approximately 6.15am. He was at the pre-start meeting, attended by Mr Rivers. He did not speak with Mr Rivers at the pre-start meeting; this is not unusual.

[40] He worked until approximately 4.30pm, at around his second crib break. He was having a cigarette in the smoking section when Mr Rivers approached him and informed him that when he finished his cigarette, he should come to the office for a meeting with Mr McNamara.

[41] Mr Macklin responded that he would, as soon as a shift delegate of the CFMMEU was organised. Mr Bob Grieve, a shift delegate, soon met with Mr Macklin, and together they went to the Supervisors office.

[42] Mr Macklin’s account of the conversation with Mr McNamara and Mr Rivers is that they did most of the talking. Mr Rivers stated that Mr Macklin had refused duty, and that there would be an investigation and another meeting.

30-31 May 2018

[43] At the commencement of night shift on 30 May 2018, Mr Macklin was approached by Ms Mouat. She informed him that he would be required to attend another meeting in the morning, towards the conclusion of the shift. Ms Mouat stated that Mr Grieves was away, and asked Mr Macklin who he would like as a ‘support person’.

[44] Mr Macklin replied that he would like Mr Simon West to be his representative. Ms Mouat asked if Mr West was on night shift. Mr Macklin responded that he was on day shift, not night shift. Mr Macklin continued his shift and attended the Supervisor’s office for the planned meeting at approximately 5.00am. Mr McNamara was there, together with Ms Mouat and the following conversation occurred:

Mr McNamara: You ready for the meeting?

Mr Macklin: Has Simon arrived already?

Mr McNamara: It’s not up to me to organise your support people.

[45] Mr Macklin stated that he would not discuss the 28 May 2018 incident without a representative present. Some disagreement ensued, with Mr McNamara asserting that Mr Macklin was not cooperating with the investigation and the meeting.

[46] Mr McNamara left the room and returned 5-10 minutes later and presented Mr Macklin with a letter directing him not to attend work while BHP continued to investigate the allegations that Mr Macklin had refused to follow a reasonable direction from his supervisor. Mr Macklin was stood down from employment on full pay.

[47] The following is an extract from the letter presented to Mr Macklin during the meeting of 31 May 2018: 12

“Dear Greg

Allegations about your conduct

I refer to our meeting on Thursday 31 May 2018. As we discussed, the Company is continuing to investigate allegations made against you regarding refusal to follow reasonable direction from your supervisor. I note that you have refused to participate in an interview regarding these allegations.

Direction not to attend work

You are directed not to attend work from today until further notice from the Company whilst the investigation into this matter continues. You will continue to be paid during this time and must be available at the Company’s request. We currently have your contact details on file as [phone number]……”

31 May 2018

[48] After leaving the site, Mr Macklin sent to Mr West a copy of the letter and discussed the issue with him on the phone. Mr Macklin stated to Mr West that he didn’t think that he had to train or assess the contractor. Mr Macklin said that a further meeting had been scheduled, and Mr West said he would attend with him as his representative.

[49] Mr Macklin and Mr West held a further conversation. Mr Macklin stated to Mr West that he did not think that he had to train or assess contractors if he was asked to do so. He stated that he thought that contractors and labour hire employees were different, and that is the impression Mr West had given when he had been informing Mr Macklin about changes to a recent enterprise agreement.

[50] Mr West said to Mr Macklin that was incorrect, and he did have to train contractors if he was asked to do so. Mr West explained that when he had been discussing differences in the enterprise agreement, it had been to do with the redundancy process, not about having to train contractors.

[51] Mr Macklin concluded that he had made a mistake, and he was determined to apologise and explain his mistaken belief. Mr West agreed to raise the issues on Mr Macklin’s behalf at the meeting on 1 June 2018.

1 June 2018

[52] On 1 June 2018 Mr Macklin again met with Mr McNamara. Mr West attended as Mr Macklin’s employee representative. Mr Tom Swanton, Superintendent Analysis & Improvement, assisted Mr McNamara. Mr Rivers was overseas on annual leave on this date.

[53] Mr McNamara asked Mr Macklin a series of questions about the 28 May 2018 incident and took his responses.

[54] Mr Macklin recalled that Mr McNamara referred to BHP’s ‘Charter Values’ and alleged that Mr Macklin’s conduct during the 28 May 2018 incident may have breached the Charter Values. Mr Macklin did not recall that Mr McNamara referred to any Charter Value/s in particular as having possibly been breached by Mr Macklin.

[55] Mr Macklin stated to Mr McNamara that he had discussed his obligations and the 28 May 2018 incident with Mr West. Mr Macklin, with Mr West’s assistance, explained to Mr McNamara that he had been of the mistaken belief that he was not obligated to train or assess contractors under the provisions of the 2018 Agreement due to the difference in the definitions of ‘labour hire employees’ and ‘contractors’ under the 2018 Agreement.

[56] Mr Macklin apologised to Mr McNamara for his mistake. His evidence is that he made it clear to Mr McNamara that he would follow any future direction to provide training to contractors. Mr Macklin’s evidence is that when Mr West was trying to explain the misunderstanding, Mr Swanton was talking over him. 13

[57] At the conclusion of the meeting Mr McNamara informed him that he would remain stood down [with pay] from his employment.

15 June 2018 – show cause letter issued

[58] On 15 June 2018 Mr Macklin attended a meeting conducted by Mr McNamara. Also in attendance was Mr Nelson as his employee representative. Mr Owen Edmunds, Manager of Mine Planning for BHP, also attended the meeting on behalf of BHP.

[59] Mr McNamara issued to Mr Macklin a show cause letter, reproduced below: 14

“14 June 2018

…

Dear Greg

YOUR EMPLOYMENT WITH GOONYELLA RIVERSIDE MINE

I refer to our meetings on 29 May, 31 May and 1 June 2018 in relation to the Company’s investigation into your conduct and behaviour on 28 May 2018 (Investigation). I note that Tom Swanton, Superintendent Analysis & Improvement also attended the meeting and Simon West attended as your support person/employee representative.

Findings

The investigation is now complete. The investigation found that:

•  On 28 May 2018 Phil Rivers, Supervisor, instructed you to authorise an Operator on a haul truck through the RPL process in your capacity as a Trainer Assessor.

•  You refused to authorise the Operator.

•  Phil asked you why you would not authorise the Operator, you responded with words to the effect of you “would not train a Contractor”.

•  You also said words to the effect of you “would forego [your] role as a Trainer Assessor if [you] were made to train Contractors.

•  Phil then assigned you to an alternate task and another Trainer Assessor was called in to complete the authorisation for the Operator.

Breaches

Greg, these findings are serious and constitute misconduct. Your conduct and behaviour is also in breach of Company policies and procedures, including:

•  BHP Our Charter Values, specifically: Respect, Integrity, Accountability

As you are aware, employees are expected to comply with the Company’s policies and procedures at all times during their employment.

I also consider that your conduct falls short of the expectations and your obligations as an employee and as a Trainer Assessor to follow directions given to you by the Company. In your role as a Trainer Assessor, you are required to assist in the assessment and training of all Coal Mine Workers as directed, including contractor and labour hire employees.

Outcome – Show Cause

I have taken all relevant matters relating to this investigation into account, including your statement and responses during the investigation. In particular, I have taken into account your response that you said that you had been advised by Simon West that you were not required to assist in the assessment and training of contractor and labour hire employees. I do not accept this explanation as you have been a Trainer Assessor for 17 years and have previously completed assessment and training with contractor and labour hire employees.

Greg, as a result of the above findings, my concerns about your conduct and behaviour are very serious. I consider that your conduct and behaviour is not consistent with the Company’s expectations of employees.

I have applied the BMA Guideline to Fair Play and, in the circumstances, the Company is considering taking disciplinary action against you, which may include termination of your employment. Before deciding the appropriate outcome, I would like to provide you with an opportunity to consider the findings above and your employment history with the Company, including your disciplinary history. In particular, I note that you were issued with a Step 3 – Final Written Warning on 14 August 2017 relating to your conduct and behaviour whilst on a training course, which was found to be in breach of the BHP Charter Values and the BHP Code of Conduct.

You are required to provide a written response and to show cause as to why your employment should not be terminated. Please provide your written response to me by 12pm on Monday 18 June 2018 by email [email address]. If you do not provide a written response by this time, the Company will have no alternative but to make a decision in relation to your employment based on the information presently available.

Employee Assistance Program

Greg, I understand that this may be a difficult time for you. I wish to remind you that a professional, confidential counselling service is available to you, free of charge through our EAP provider. Appointments may be made by contacting Gryphon Psychology directly on [phone number].

If you are unclear on anything covered within this letter, please contact me on [phone number].

Yours sincerely

Lachlan McNamara…”

[60] Mr McNamara said to Mr Macklin during the meeting that he considered that Mr Macklin had breached the BHP Charter Values by his conduct of 28 May 2018, and that he did not believe Mr Macklin’s explanation that he had only refused to train the contractor as he had mistakenly understood that he was not obligated to train contractors. Mr Macklin did not recall any reason being given by Mr McNamara for why he did not believe Mr Macklin.

[61] Mr Nelson requested that Mr Macklin be afforded additional time to respond to the show cause letter. Mr McNamara agreed the response should be received by 20 June 2018.

20 June 2018 - Show cause response

[62] On Mr Macklin’s behalf, Mr Nelson delivered Mr Macklin’s show cause response to BHP. The following extracts from the show cause response are of particular relevance: 15

“At the outset I would like to apologise for my actions in advising Mr Phil Rivers that I would not RPL or train the relevant Downer employee. Doing so was a mistake and a lapse in judgement on my part. I note, as previously explained, that at the time I misunderstood the relevant requirements. I acknowledge the mistake that I made and commit to ensuring that it does not happen again…

My misunderstanding at the time came from the uniqueness of the request and my understanding of the obligations under the relevant enterprise agreement. Firstly, I note that I do not recall any other occasion in my experience of 35 years where I have been asked to provide such assistance to an employee of a discrete contractor...The difference in this case, as I understood it at the time, was the Downer workers were contracted to perform particular work at the Mine under a specific contract…In my mind at the time there was a big difference between being asked to assist with the training of labour hire/temporary workers, and of Downer employees…

In addition to the above my understanding of the obligations was, mistakenly, influenced by Mr Simon West. I had recalled a meeting relating to the new enterprise agreement at which Mr West had noted the new enterprise agreement contained new definitions addressing the difference between labour hire and contractors. I incorrectly took from that meeting, when asked by Mr Rivers to provide the training, that I was not obligated to do so. I did not at the time appreciate that I was being formally instructed to perform the task or that there would be consequences if I refused the request.”

I did not intentionally act in breach of any Company policy or procedure. I acknowledge that a mistake was made and I reiterate that I now appreciate and understand properly my obligations to provide training. I am committed to ensuring that the Company can have confidence in my willingness to work in accordance with all of my obligations, and productively and safely, in the future…

I would be more than happy to complete any relevant training or retraining the Company might consider appropriate. I take my obligations seriously and look forward to continuing as a productive, conscientious and safe employee. I respectfully request that the Company seriously consider my above response and consider all alternatives to dismissal.”

[63] Mr Macklin also set out in his response to the show cause letter his extensive length of employment with BHP and his reliance on continued employment and earning capacity as he approached retirement age. Mr Macklin acknowledged receiving the Final Written Warning on 14 August 2017. However, he submitted that viewed as a whole, he had a positive record of employment. Mr Macklin noted particularly that his safety record had been acknowledged as exemplary by BHP.

[64] Mr Macklin stated that he considered if BHP’s real concern had been Mr Macklin’s failure to abide by Mr Rivers’ direction, then that could have been resolved by directing Mr Macklin in no uncertain terms to train or assess the contractor and informing him that there would be adverse consequences to him if he refused.

[65] His evidence is that while he doesn’t particularly agree with having to train and assess contractors, if directed to do so in the future, he would do so professionally.

28 June 2018 – termination meeting

[66] On 28 June 2018 Mr Macklin attended a meeting with Mr McNamara. Also in attendance was Mr West as his representative, together with Mr Gee, Manager – Production Coal.

[67] Mr McNamara read aloud to Mr Macklin a letter prepared in advance of the meeting terminating Mr Macklin’s employment following Mr McNamara’s investigation into the 28 May 2018 incident. Halfway through Mr McNamara’s reading of the letter, Mr Macklin left the meeting and did not return. Mr West conveyed a copy of the termination letter to Mr Macklin. The termination letter is reproduced below: 16

“28 June 2018

Dear Greg

Your employment

I refer to our meeting on 15 June 2018 and my letter dated 14 June 2018, outlining the findings of the recent investigation into allegations of misconduct made against you and requiring you to show cause as to why your employment should not be terminated (Show Cause Letter). Owen Edmunds and Col Nelson also attended this meeting.

As outlined in my letter to you dated 14 June 2018, your actions on 28 May 2018 constituted misconduct and were in breach of the BHP Our Charter Values, specifically Respect, Integrity and Accountability.

In the Show Cause Letter, I asked you to show cause as to why your employment should not be terminated and invited you to provide me with your written response and any further information you wanted me to consider as part of the review of your ongoing employment.

You provided me with your written response on 20 June 2018, and I have now considered this response.

Termination

I have taken all relevant matters into account in determining the appropriate outcome, including the findings of the investigation, relevant information obtained during the investigation, your employment history and your verbal and written responses.

You failed to provide satisfactory responses to the matters raised in the Show Cause Letter and I consider your conduct to fall short of the expectations and your obligations as an employee and as a Trainer Assessor. In the circumstances, given the nature of your misconduct and your breaches of Our Charter Values, I have decided to terminate your employment with effect from today.

In accordance with the BMA Enterprise Agreement 2018, you are entitled to five (5) weeks’ notice of termination of your employment. This payment will be paid to you in lieu of notice.

Payment of accrual of entitlements

Upon termination of your employment, you will also be paid all accrued and untaken annual leave and, where applicable, long service leave entitlements, less any outstanding overpayments. Details of your termination payments will be provided to you separately.

Post-Employment Obligations

After your employment ends, you must not disclose to anyone any confidential information about the Company. You also remain bound by all other obligations in your contract of employment and associated documentation which are expressed to continue after the termination of your employment.

Return of company property

Please ensure that all Company property in your possession is returned to me by 29 June 2018. This includes but is not limited to Company tools and equipment, keys to Company buildings and vehicles, all Company documents (including electronic documents, resources, software and hardware).

Your termination entitlements will not be paid to you until all Company property is returned.

Please also let me know if you have any personal property at the Mine so I can arrange to have it returned to you.

Yours sincerely

Lachlan McNamara…”

Evidence during the hearing

Position as a trainer/assessor

[68] In answering questions from Mr Rauf, Mr Macklin agreed that during the course of his employment he had been obligated to perform such tasks as reasonably required by BHP without any demarcation of duties while complying with all legal and statutory obligations. He accepted that BHP could have required him to perform any operation, mining, maintenance or technical issues that he was trained, competent or authorised to perform. He accepted that as an authorised trainer/assessor, BHP could have directed him train any other person at a mine, although he would be given preference for training opportunities on certain machinery. 17

[69] Mr Macklin agreed that refusing to comply with a direction meeting the terms expressed above would be a breach of a condition of his employment and further could undermine the authority of supervisors on site. 18

[70] Mr Macklin agreed that his role as an authorised trainer/assessor held important implications for safety at the Goonyella site and for BHP’s compliance with the CMSH Act. Mr Macklin acknowledged that BHP relied upon his assessment of a person as competent to safely operate a relevant piece or class of machinery at Goonyella as confirmation that the person was in fact competent. 19

[71] Mr Macklin agreed that if, in the course of conducting assessment or training of a person he noticed an error or deficiency in the way that the person operated a piece of machinery, and if Mr Macklin issued them an instruction to address that error but that person declined to follow Mr Macklin’s instructions, that would have been cause for concern for him. Mr Macklin agreed that if he were to maintain or repeat his instruction and the person maintained their refusal, that would have been a matter of further concern for Mr Macklin and he would not have authorised that person as competent in such circumstances. 20

[72] It was put to Mr Macklin that in accepting appointment as a trainer/assessor, he had acknowledged that he had met with a site supervisor or advisor who had explained the requirements and responsibilities of the trainer/assessor role. Mr Macklin agreed that he had signed a document accepting that he had met with a site supervisor, but denied that he actually met with a supervisor and had his obligations as a trainer/assessor explained to him. 21

[73] Mr Macklin restated his understanding that he could resign as a trainer/assessor at any time if he no longer wanted to fulfil that role, and that neither Mr Rivers nor Mr McNamara or anyone from BHP had suggested to him that that was not the case. 22

Conduct on a bus – 21 February 2016

[74] As noted at [18] of this decision, Mr Macklin was issued with a Final Written Warning on 18 June 2016 – the ‘Bus Warning Letter’.

[75] On 21 February 2016, Mr Macklin entered a bus on the Goonyella site. The female driver of that bus asked Mr Macklin to put on his seatbelt. He responded: 23

“You need to concentrate on driving as you are a female.”

[76] The following was put in cross-examination and in questions from me: 24

Rauf: What did you mean by that?

Macklin: Jokingly.  Knowing that the reputation ladies have got as drivers.

Rauf: All right.  So this was?

Macklin: That - that - it was again an out of context joke.

Rauf: Was this someone that you knew?

Macklin: No.

Rauf: So this was the Greyhound bus driver who happened to be a female.  She tells you to put your belt on and you say, "Keep your eyes on the road" - sorry, "Keep your eyes on the road because you're a female"?

Macklin: Yes.

Commissioner: What reputation to female drivers have, Mr Macklin?

Macklin: It's just a generalisation, Commissioner, that lady drivers are not good drivers.  That's all it was.  It was in - it's no derogatory term.  It's just a generalisation.

Commissioner: It's not a derogatory term, is it?  No?  It's a just generalisation that you have, is it?

Macklin: From not only me, but I used it.  Yes.

Commissioner: So not only you share that view?  You share it with others, do you?

Macklin: I don't really share the view, because I know a lot of lady drivers that are excellent drivers, Commissioner.  So - but it was in a joking tone, which was taken out of context.  That's all it was.

Commissioner: So you said to her - had she driven you before?

Macklin: Possibly, yes.

[77] Mr Macklin agreed that refusing to put his seatbelt on could be considered to be a refusal of an instruction given to him by a person on site. Mr Macklin stated that he did not think that he had been disrespectful in making the comment to the bus driver and did not see the problem with his comment, which he considered to have been made in a joking manner. However, Mr Macklin stated further that he did not maintain that jokes of that nature were ‘ok’ as he had not used that joke again. 25

[78] When asked further questions in cross-examination, Mr Macklin gave evidence that he stated to the driver: 26

"Focus on your driving.  You are a female after all…." 

[79] I asked Mr Macklin the following questions:

Commissioner: How many other people were in the bus?

Macklin: Full crew.  20-odd people.

Commissioner: "Keep your eyes on the road, because you are a female after all."  How do you think she felt?

Macklin: Yes.  I honestly can't answer that.

Commissioner: Humiliated?

Macklin: Possibly she could have.  Yes. Which I might add, after I found out there was an issue, I was denied the attempt to apologise to that person, face-to-face.

Commissioner: Did you ever see her drive the bus again?

Macklin: Honestly, no.  I couldn't tell you where or how it ended up.

Commissioner: Were you prohibited from having any contact with her?

Macklin: Yes.

Commissioner: What were you told?

Macklin: Yes, that I - because I asked - once I was told that the lady was very upset, I asked if I could meet with her and apologise.  And I was just straight out refused.

Conduct during training course of 29 May – 31 May 2017

[80] Mr Macklin acknowledged that he had been issued with a warning on 13 August 2017 regarding his conduct during a training course conducted 29 May-31 May 2017.

[81] The course run by Ms Shanks provided participants who are trainers/assessors appropriate competency to assess individuals in the workplace. Coal mining employees are typically required to undertake a refresher course every five years. The course participants included some BHP people, together with others from other corporations. There were 11 participants in total.

[82] Ms Shanks sent the following email to BHP one day after the training course ended: 27

“TAE block A Moranbah 29 to 31 Sharp Training.

Gregg Macklin [sic] was in a class of 11 candidates completing block A in TAE40110.

From the outset on day on when we all introduced ourselves, prior to the commencement of training, and talked about where we worked and our experience as a trainer and assessor, he articulated very clearly that he had been training for years and it was all bull shit the changes that had occurred over the years and it was ridiculous that he had to retrain.

During the course of the day he often stated his opinion forcibly and showed disinterest or derision to any other opinion offered by myself or the other students.

During training when I stated facts such as- principles of assessment to be valid, reliable, fair and flexible- he argued that I was wrong and this had nothing to do with how real assessment was done.

His body language was overbearing towards me and the other candidates and with this and his verbal arguments, he set about to dominate the training.

As all times I redirected back to me and minimised his disturbances as much as possible. My tactics was to ignore.

He made a very derogatory and rude remark to a statement I made about women being 50% of the target in the mining workforce very soon, when we were discussing discrimination and EEO.

At the end of the day I set a task to be completed prior to day 2 of training and indicated that I would be looking at it first thing tomorrow morning and giving them feedback.

Day Two

He arrived with his overnight task not complete at all and when I asked him about it he was very non committal [sic]. I told him in front of all the class that I expected it to be complete by the end of the day and he said words to the effect of I doubt it, and not happening etc.

During the class up to morning tea his behaviour from yesterday escalated.

He smirked and made remarks about how this is not how it happens in mining, this is not real, this is all bullshit; with me stating at all times and redirecting that this was not about mining, it was about training and assessing for many situations.

He then verbally challenged Roy Paton (trainer observer sitting in on classes) as to whether he had ever been in real mining, I closed the conversation down saying that this has nothing to do with mining, this is training and assessing.

Following this I was trying to help him with an [sic] written assessment task where he refused to accept information, again saying it was all bull shit, about simulated activities occurring for some assessment situations, as being valid in terms of adjustment.

I then asked him to step out of the room as I needed to talk with him, myself and Roy went into the vacant classroom next door, he followed.

I invited him to sit down, he refused saying I want to stand, and proceeded to fold his arms, barrel out his chest and use very confronting body posture.

I began the conversation and Roy added to the sentence at which he raised his arm and shoved it in Roy’s face and told him to shut up.

I tried to discuss the issues I was having, he refused to acknowledge any wrong doings.

I gave him the choice of staying and complying with our policies and procedures as to student behaviour or leaving and having to discuss rescheduling.

He left the room without telling me his indications, but returned to the classroom in about ten minutes.

During the rest of the day he did not speak, and completed assessment as required.

At the end of the day I discussed with him, when all the others had left his night time task that he had written up sometime during the day, but when I offered suggestions and ideas for how I expected it to be done, and not as he had written, he did not acknowledge this in any way but just walked out and left. Another task was given to all the students for them to complete and bring back the next morning, prior to the practical aspect of day three.

Day Three

Gregg [sic] arrived with his overnight task completed but not satisfactory and was offered direction for successful completion.

Gregg [sic] attended class all day without speaking, completed all assessment as required and completed the practical aspect of the unit, once his task sheet was completed satisfactorily.

He has completed and is competent in all 4 units for TAE Block A.

However, I believe there is little or no change in his skills or knowledge in training and assessing following this training, and no change in behaviours and attitudes towards the newer aspects of training and assessing under current legislation and standards.”

[83] In Ms Shanks’ statement her evidence is that she made a comment about women returning to the workforce needing breastfeeding facilities, and this was met with derogatory comments by Mr Macklin. It is her evidence that there were three women in the session who were becoming visibly upset with each of Mr Macklin’s remarks.

[84] In Mr Macklin’s witness statement he denied having made any comments in relation to breastfeeding. 28

[85] Mr Macklin’s recollection of his conduct during the training course was that he had pointed out inconsistencies between the provided course materials and the instructions given during the training course, as he had been concerned about the accuracy and usefulness of the training. Mr Macklin did not consider that he had acted aggressively during the training course.

[86] Mr Macklin recalled a discussion between him and Ms Shanks. Mr Macklin stated that Mr Roy Paton, an observer to the training had interrupted the discussion between him and Ms Shanks, to which Mr Macklin had pointed at Mr Paton and told him to “shut up”.

[87] Mr Macklin denied having ‘stood over’ Ms Shanks and Mr Paton. Mr Macklin stated that he pointed at Mr Paton but did not ‘shove his arm in [Mr Paton’s] face. Mr Macklin stated that Ms Shanks did not ever stand between him and Mr Paton. 29 Mr Macklin acknowledged that he should not have acted towards Mr Paton as he did and that he ‘lost his cool’30 where he could have handled the matter differently. He completed the training course.

[88] Mr Macklin stated that he did not agree with the content of the warning given to him on 13 August 2017. However, he had attempted to understand the concerns raised by BHP and had sought to ensure that he did not expose himself to similar allegations, and there had been no similar event. 31

[89] During the hearing Mr Rauf took Mr Macklin to the statement of Ms Shanks, and put to him the matters alleged by Ms Shanks in her statement and the complaint made by her. 32 Mr Macklin conceded that he exhibited certain behaviours as alleged against him and denied others.33 Mr Macklin agreed that he could have chosen to dispute or object to the final written warning, but in the circumstances chose to accept the final written warning and ‘move on’.34

[90] In re-examination, Mr Macklin stated that he had been called into a meeting with his supervisor at the relevant time regarding complaints made by Ms Shanks. He was informed the complaints would be investigated. Mr Macklin did not recall being provided with any opportunity to respond to Ms Shanks’ complaints; he merely recalled being informed of the outcome of the investigation by way of the final written warning. 35

[91] During the second day of hearing, Mr Rauf sought to tender documents relating to meetings that Mr Macklin participated in relevant to his conduct during the training course, and a meeting between Mr Macklin and Ms Mouat on 27 June 2017 in relation to the training course. The document was admitted. The document set out a series of questions and answers regarding the training course that were purported to be put to Mr Macklin during a meeting with Ms Mouat and Mr Russell Duncan, Supervisor, on 27 June 2017.

[92] Mr Macklin agreed that the questions and answers set out in that document reflected discussions occurring during that meeting. 36 It is an agreed fact that Mr Macklin was not shown Ms Shanks’ email of complaint until the evidence was produced in these proceedings.

Historical performance reviews

[93] Mr Macklin was asked to consider the written review of his performance that had been conducted for the 2015 financial year. 37 The review stated that Mr Macklin, ‘does not follow charter values’. Mr Macklin stated that was simply the opinion of the supervisor that had completed the review; an opinion which he did not share. Mr Macklin’s overall performance rating had been ‘(3) Meets Performance Expectations’.38

[94] The written performance review for the 2016 financial year contained comments such as, “Gregory needs to think before he speaks as it get him in trouble and need to respect other for what they are” and, “Gregory needs to respect all his crew members and give them the respect they deserve.” Mr Macklin’s overall performance rating was ‘(3) Meets Performance Expectations’. 39 Mr Macklin stated that he had been in the room with the supervisor as those comments had been written down and in all likelihood he would have said to the supervisor words to the effect, ‘I don’t agree with you’.

[95] The 2017 written performance review completed by Ms Mouat and Mr Duncan included comments such as, “[Mr Macklin] Needs to show improvement when it comes to others around the charter values, specifically respect ” and, “ Greg needs to work on some aspects with code of conduct, specifically respect.” 40 Further, Mr Macklin’s overall performance rating had dropped to a ‘(2) Improvement required’. He had refused to sign the performance review for 2017.

[96] Mr Rauf pressed Mr Macklin on his understanding of his performance assessments. The following discussion between Mr Rauf and Mr Macklin is relevant: 41

Rauf: And so these are two different supervisors now. They raised with you concerns about needing to show respect and acting consistent with the charter values, yes?

Macklin: Yes.

Rauf: They say that you're no longer meeting expectations but you need improvement, yes?

Macklin: Their opinion, yes.

Rauf: Again when you say their opinion, does it not matter that these are two supervisors now who are telling you, "Greg, you need to respect others. You need to pull up your socks and comply with the charter values". Does that not matter to you?

Macklin: So - well, why do I have to agree with somebody's opinion?

Rauf: They're supervisors?

Macklin: Just because they're supervisors, why do I have to agree with their opinion?

Rauf: All right, so if they give you feedback you say you're entitled to reject that because you might have a different opinion?

Macklin: Yes.

Rauf: All right, and that's why you refused to sign?

Macklin: Yes, I've never signed. Like I said, the 2015, I don't know why I wrote or signed it.

Rauf: At least looking across those three IDPRs you'll agree with me that with four different supervisors there's a theme of them telling you "Greg, you need to respect others. You need to act consistent with the charter values"; that's consistently conveyed to you now by four supervisors in the course of three IDPR processes, yes?

Macklin: No, I don't agree with you because that's - - -

Rauf: Their opinion?

Macklin: That is three different IDPRs where they just used that code of conduct for something to fall back on.

Rauf: It's all rubbish?

Macklin: Well, I'm not saying it's all rubbish, no. I just don't agree with their opinions.

Rauf: You don't accept it?

Macklin: I don't agree with their opinions.

Rauf: All right, so it matters not that you've had four supervisors raise a similar concern, that's their opinion and you don't have to agree with that?

Macklin: That's correct. Why have I got to agree with somebody's opinion?

Rauf: Well, they just not - - -?

Macklin: I fail to see why I'm expected to agree with somebody's opinion.

Rauf: Yes, well it's not just somebody, it's your supervisor in a work situation giving you feedback about your behaviour at the workplace. It's not just somebody. Four separate supervisors. You say that "Well, so what?"?

Macklin: No, I didn't say "So what?" I said I don't have to agree with their opinion.

Commissioner: Mr Macklin, in the 2017 meeting did you meet with Mr Duncan and Ms Mouat so that the three of you met?

Macklin: Yes.

Commissioner: And that's their signatures is it?

Macklin: I would assume so, yes. The second one, probably.

Commissioner: All right, but the three of you met in the room?

Macklin: Yes.

Commissioner: Do you recall what you said when they read out what they wrote?

Macklin: No, I honestly couldn't say what I would have said. I most likely would have said nothing.

Commissioner: All right. Thank you.

Rauf: They asked you to sign though, didn't they?

Macklin: Asked me if I would like to sign, yes.

Rauf: And you refused?

Macklin: Yes.

Rauf: What did you say as best as you can recall?

Macklin: Well, they said "Would you like to sign?" and I said "No".

Rauf: Did you say why?

Macklin: No, I don't have to say why. I just said no.

Rauf: I'm not saying you have to. I'm just understanding whether you did explain why?

Macklin: Yes.

Rauf: Did you give them your thoughts or your opinion about their opinions?

Macklin: No.

Macklin: All right, you just decided that "Look, it doesn't matter. It's their opinion. I don't have to agree with it"?

Macklin: It's their opinion, it's the company's IDPR. They can write in there - like I've said to all supervisors "You can write in there what you like".

Rauf: So as far as you're concerned you didn't agree and that was the end of it, you didn't have to worry about it?

Macklin: The - like I said, that's their opinion in - written in there.

Rauf: So you agree with what I've said? I'll repeat it. So in your mind because you saw it as their opinion, you didn't agree with it so for you it was the end of the matter, you didn't have to worry about it further?

Macklin: No, I probably didn't think about it either way. No.

Rauf: Okay, out of mind?

Macklin: Yes.

The 28 May 2018 incident

[97] Mr Macklin confirmed in cross-examination his recollection of the 28 May 2018 incident and his discussions with Mr Rivers. Mr Macklin’s recollection of the 28 May 2018 incident did not significantly change under cross-examination.

[98] Mr Rauf put to Mr Macklin that by saying to Mr Rivers words to the effect that he does not train contractors and would resign as a trainer/assessor if forced to train contractors, Mr Macklin had challenged Mr Rivers and given him an ultimatum that Mr Macklin would resign as a trainer/assessor if forced to train the contractor. 42

[99] Mr Macklin agreed that with the benefit of hindsight, he had been mistaken in refusing to assess the contractor on 28 May 2018. However, Mr Macklin stated that he had not been refusing to complete the duties of his employment as he understood them, as had not believed that training and assessing contractors was a duty of his employment. 43

[100] Mr Macklin accepted that it had probably been inappropriate to put the ‘ultimatum’ to Mr Rivers that he would resign as a trainer/assessor if forced to assess the contractor. Mr Macklin did not agree with Mr Rauf that some type of sanction or warning was warranted from his conduct in the 28 May 2018 incident. 44 Mr Macklin did not accept that his conduct had undermined Mr Rivers’ authority or that his refusal to train the contractor had been a ‘challenge’ to Mr Rivers.45

[101] Mr Macklin stated he could not recall Mr Rivers saying anything to Mr Macklin during the 28 May 2018 incident that indicated that Mr Rivers had ‘insisted’ that Mr Macklin assess the contractor. 46

[102] Following questions from Mr Rauf and Mr Anderson, I asked Mr Macklin a series of questions regarding the events of the 28 May 2018 incident and the discussions between Mr Macklin and Mr Rivers. The following extracts are relevant to my consideration of this matter: 47

Commissioner: Your evidence is that he said "Come on, mate, I really need you to do this.  It would help me out"?

Macklin: Correct.

Commissioner: And you said "No, I don't train contractors that will take my job".  "Well, in that case I'll have to get you to hop in a truck for the rest of the day while I make other arrangements".  "Yep, that's no problem at all".  So that's your evidence?

Macklin: That's correct.

Commissioner: His evidence is that he approaches you and says "You've put me in a bind.  I'll need to get someone else to RPL the Downer work now and you'll have to go out and do the truck, go and do truck operations".  So which one is it?  Did he say "Come on, mate, I really need you to do this.  It would help me out"?

Macklin: Commissioner, it's six of one, half a dozen of the other.  It - I - it could be what Phil said, it could be what I said.

Commissioner: It appears to me that Mr McNamara, his evidence is that he instructed Mr Rivers to go challenge you again?

Macklin: Yes, that did not happen.

Commissioner: Mr McNamara said to Mr Rivers "Phil, I want you to direct him to do it again".  He comes back and says "I've directed Mr Macklin to RPL a Downer worker again and he's refused"?

Macklin: Again there was no - in the second instance there was still no direction.

Commissioner: You say it was a request was it?

Macklin: Basically, yes, as the - we both sort of stated.  Yes, it was - - -

Commissioner: Is it a favour?

Macklin: That's what I understood the meaning of it to be, yes.

Commissioner: "Come on, mate, I really need you to do this.  It would help me out"?

Macklin: That's what - - -

Commissioner: You didn't think it was an obligation by the second conversation?

Macklin: Honestly, no.  No, I didn't - it wasn't a direction.  It didn't seem like a direction to me, so.

Commissioner: And when he said "Well, in that case I'll have to get you to hop in a truck for the rest of the day while I make other arrangements", was it your understanding that he accepted what you had to say?

Macklin: Yes.

Commissioner: And had acquiesced?

Macklin: Yes, that's what I understood because I did - when the truck turned up I went out and got on the truck and I thought everything was hunky dory, it was all good.

…

Commissioner: And Mr McNamara's evidence is that he instructed Mr Rivers to provide that second direction to you and that Mr Rivers reported to him that he had in fact made a second direction to you. So what are your views on that, if Mr McNamara is wrong and he's made his decision based on Mr Rivers' reporting "I made a second direction and he refused it a second time"?

Macklin: Yes, like I've already stated I did not think that his - the second conversation was a firm direction.

Meetings and investigation relating to the 28 May 2018 incident

[103] Mr Macklin confirmed that upon attending the Supervisor’s office for the meeting of 31 May 2018, he had come to know that Mr West would not be attending the meeting as he was not on shift and nothing had been organised. Mr Macklin refused to participate in the meeting without a representative.

[104] Mr Macklin agreed that during the meeting of 1 June 2018 he had been given an opportunity to provide his version of the events of the 28 May 2018 incident to Mr McNamara with the assistance of Mr West. However, Mr Macklin considered that he had been denied the opportunity to have his nominated representative available at the meeting of 31 May 2018.

[105] In answering questions from me, Mr Macklin confirmed that once he had recognised that he had been mistaken as to his obligations to train contractors under the 2018 Agreement, he resolved immediately to apologise for his error and to state that it would not happen again. 48

[106] Mr Macklin stated that he did not speak much during any of the meetings held in relation to the 28 May 2018 incident. While he had demonstrated his remorse and misunderstanding regarding the 28 May 2018 incident in his response of 20 June 2018 to the show cause letter, he acknowledged that he had not personally apologised during any of the meetings regarding the 28 May 2018 incident.

[107] Mr Macklin considered that Mr West had conveyed Mr Macklin’s apology and remorse on his behalf during the meeting of 1 June 2018. 49

[108] I referred Mr Macklin to the decision making process undertaken by Mr McNamara and the conclusion reached as set out in a ‘Just Culture Decision Tree Form’ appearing as an attachment to Mr McNamara’s statement. 50 I noted to Mr Macklin that Mr McNamara had found that in the circumstances, Mr Macklin’s conduct meant that, “Disciplinary action, which is commensurate with the severity and/or frequency of the act/s of misconduct will then be taken”.51 Mr Macklin’s personal understanding of the ‘Just Culture’ process was that the above finding did not necessarily mean that Mr Macklin’s employment would need to come to an end.52

Mitigation

[109] Mr Macklin stated that he had been unsuccessful in his attempts to find alternative work since his dismissal on 28 June 2018. Mr Macklin stated that he had attempted to mitigate his loss by:

•  searching for alternative work on online job boards and in newspapers;

•  asking for assistance in preparing a CV;

•  making enquiries regarding labour hire positions.

[110] Mr Macklin stated that his attempts to mitigate his loss did not continue after 2 October 2018, when he made his first statement in respect of this matter. Mr Macklin stated that he had not made further attempts to find alternate employment because he considered that if he were to accept other employment but was ultimately reinstated to his position with BHP, he would have ‘kept someone else out of a job’. 53

[111] I explained to Mr Macklin my obligations under s.392(2)(d) of the Act to consider his efforts to mitigate his loss in considering the amount of any order for compensation that could be made in relation to his application.

[112] Mr Macklin indicated that the Mr Anderson had explained to him his duty to mitigate his loss, and he understood that his efforts to mitigate his loss would be considered if I decided that he was unfairly dismissed but ordered that he be paid an amount of compensation as opposed to being reinstated to his former employment.

[113] During the hearing I sought Mr Macklin’s views on how receptive he considered himself to change and how flexible he would be to following further directions were he to be reinstated. Mr Macklin considered himself capable of returning to work and ‘getting on with the job’ immediately.

[114] I sought Mr Macklin’s views on his previous performance reviews, the complaint of Ms Shanks and warning he received in relation to his comments towards the bus driver during 2016, and whether he considered that he had an issue with demonstrating respect in the workplace. Mr Macklin clearly considered that any purported issues with ‘respect’ were not an issue that should prevent his reinstatement. Mr Macklin considered references to ‘respect’ in his performance reviews were “something for them to fall back on easily”. 54

[115] Mr Macklin stated further that there had been occasions during his employment when he had ‘given [fellow workers] a blast over the two-way for doing the wrong thing’, such as for driving too fast or too near to Mr Macklin while he was grading a section of road or engaging in other unsafe conduct. Mr Macklin acknowledged that on occasion, he had mistakenly used the incorrect radio channel when ‘giving a fellow worker a blast’ and had directed his comments ‘over the whole mine’, rather than over a closed channel. Mr Macklin anticipated that such conduct may have been cause for BHP to reflect in Mr Macklin’s performance reviews that he had issues with ‘respect’.

[116] In re-examination, Mr Macklin clarified that it was ‘the norm’ for persons working at the Goonyella site to use closed radio channels to talk.

Evidence of Mr Simon West

[117] Mr West stated that he is an employee of BHP working in the ‘Drill and Blast Department’ at the Goonyella mine, having worked there for approximately 14 years. Mr West also stated that has held the position of Lodge President of the CFMMEU’s Goonyella Riverside Lodge (the Lodge) for approximately eight months. Prior to that, Mr West had been the Lodge Secretary for approximately eight years.

[118] Mr West stated that he had become familiar with Mr Macklin in the course of his employment and as a result of Mr Macklin being a member of the CFMMEU. Mr West worked in a different department to Mr Macklin and did not work with him on a day-to-day basis.

Negotiation of the 2018 Agreement and explanation of new definitions

[119] Mr West stated that he had been a member of the CFMMEU’s bargaining team during the negotiation of the 2018 Agreement. He stated that in the course of those negotiations the CFMMEU and BHP agreed for new definitions relating to ‘Labour Hire’ and ‘Contractors’ to be included. The reason that new definitions were required related to issues regarding redundancies.

[120] Mr West stated that throughout the course of the negotiations he conducted several meetings with CFMMEU members at Goonyella regarding the terms of the 2018 Agreement. Mr West recalled that at several of those meetings and in discussions with members, he explained the inclusion of the definitions of “Labour Hire” and “Contractors” and how those definitions would affect redundancies. 55

Discussions with Mr Macklin regarding the 28 May 2018 incident

[121] Mr West stated that he discussed the 28 May 2018 incident with Mr Macklin on 31 May 2018 and again on 1 June 2018 prior to the meeting he attended on that date. Mr Macklin said to him that he thought that he did not have to train contractors, and had thought that Mr West had said that contractors were different from labour hire employees during meetings in relation to the 2018 Agreement. Mr West recalled that Mr Macklin stated that he had never been asked to train a contractor before.

[122] Mr West confirmed to Mr Macklin that he did have an obligation to train contractors if directed to do so, and that he had always held that obligation under the previous enterprise agreement and the 2018 Agreement. Mr West stated that Mr Macklin appeared to be genuinely confused about his obligation to train contractors. 56

[123] Mr West recalled that Mr Macklin informed him that he had determined to apologise for the 28 May 2018 incident and make clear to BHP that he would train contractors in the future if requested to do so.

[124] Mr West recalled that he was contacted by Mr Macklin by phone, who informed him that he had nominated him as his ‘employee representative’ under the 2018 Agreement. Mr West was told by Mr Macklin that BHP had attempted to conduct the meeting of 31 May 2018 without Mr West.

[125] Mr West confirmed that he was not contacted to arrange a mutually convenient time for the meeting. Mr West considered that BHP had an obligation to do so under the 2018 Agreement. He stated that he attempted to send a letter to Mr McNamara regarding the failure to inform him of the meeting of 31 May 2018. Mr West stated that some time after sending that letter, he became aware that he had entered an incorrect email address and Mr McNamara had not received his letter.

[126] Mr West stated that Mr Macklin made him aware of the further meeting to be held on 1 June 2018. Mr West stated that he was not contacted by BHP about the meeting of 1 June 2018 or consulted about when it would take place. 57

[127] Mr West stated that he was not made aware of any suggestion being made to Mr Macklin prior to the meeting of 31 May 2018 that Mr West could not be his employee representative.

Meeting of 1 June 2018

[128] Mr West attended the meeting of 1 June 2018 with Mr Macklin. Mr West recalled that Mr McNamara and Mr Swanton attended the meeting on behalf of BHP.

[129] Mr West recalled that there was some discussion between him and Mr McNamara about BHP’s obligation to inform Mr West as a nominated employee representative of the arrangements of the 31 May 2018 meeting. Mr West recalled that he referred Mr McNamara to the relevant clause of the 2018 Agreement. 58 Mr West stated that Mr McNamara did not offer an apology or explanation as to why Mr West had not been informed of the 31 May 2018 meeting. Mr West stated that he considered Mr McNamara’s misunderstanding of his obligation to inform Mr West of the 31 May 2018 was similar to Mr Macklin’s misunderstanding during the 28 May 2018 incident, except that Mr McNamara did not acknowledge or apologise for his mistake.

[130] The allegations put to Mr Macklin by Mr McNamara related to the BHP Charter Values and Mr Macklin’s alleged failure to follow directions. Mr West stated that Mr McNamara did not make any mention of the CMSH Act or Mr Macklin’s obligations under the CMSH Act. 59

[131] Mr West recalled that during the meeting of 1 June 2018, Mr Macklin stated that he had made a mistake in the 28 May 2018 incident and that it would not be repeated. He apologised for failing to train the contractor and explained his mistaken belief that he had not been obligated to train contractors. Mr Macklin stated during the meeting that he would have no issue with training contractors in the future. 60

Meeting of 28 June 2018

[132] Mr West stated that he attended a meeting on 28 June 2018 at which Mr Macklin’s employment was terminated. Mr McNamara and Mr Gee participated in the meeting on behalf of BHP. Mr West recalled that the meeting was short and mainly consisted of Mr McNamara reading the termination letter aloud.

[133] Mr West stated that while Mr McNamara was reading the termination letter aloud and after Mr McNamara had indicated that Mr Macklin’s employment had been terminated, Mr West asked Mr Macklin to wait outside. Mr West stated that he thought it unrealistic for BHP to expect Mr Macklin to remain in the meeting and for the meeting to continue after that point. 61

[134] Mr West confirmed that Mr McNamara provided him with a copy of the termination letter.

Other matters

[135] Mr West gave evidence about his understanding of ordinary operations at the Goonyella mine. Mr West stated that in his experience and as a result of his discussions with other workers at the Goonyella mine, it was not common for trainer/assessors to be asked to train or RPL a contractor. 62

[136] Mr West stated that there had been a subsequent occasion to the 31 May 2018 meeting where Mr McNamara had made no attempt to consult with him about the timing of a meeting to be held with an employee in relation to a dispute under the 2018 Agreement, and had suggested to Mr West that the meeting would continue on a certain date whether he was there or not. 63

Cross-examination

[137] In cross-examination, Mr West confirmed his understanding that BHP held a broad discretion under the 2018 Agreement to direct employees to perform tasks which they are competent or authorised to perform. Mr West agreed that trainer/assessors are obligated under the 2018 Agreement to train any other person at a mine as directed by BHP. 64

[138] Mr West agreed that if an employee refused a lawful and reasonable direction to complete a certain task or duty, then that could be a matter of serious concern. Mr West agreed that the management hierarchy at the Goonyella mine relied on the expectation that the directions of supervisors would be followed.

[139] Mr Rauf sought to clarify Mr West’s evidence and put to him that an employee’s subjective view of the tasks that they may be required to complete under an agreement would not be an acceptable basis for an employee to ‘give an ultimatum to a supervisor’. Mr West responded that if an employee were asked to perform a task, and that employee did not understand that or why they were required to perform that task, then they would not be ‘refusing’ to complete the task. 65

[140] Mr West agreed that ultimately, although there had been some dispute regarding the meeting of 31 May 2018 and the obligation of Mr McNamara to inform Mr West of that meeting, the 28 May 2018 incident was not discussed on 31 May 2018, and the meeting was rescheduled for 1 June 2018. Mr West agreed that Mr Macklin was given an opportunity to present his views of the 28 May 2018 incident during the 1 June 2018 meeting.

[141] In answering questions from Mr Anderson in re-examination, Mr West confirmed his view that there had been a denial of Mr Macklin’s right to provide a response to the allegations against him during the meeting of 31 May 2018, as a result of Mr West’s absence from that meeting. 66

[142] Mr Rauf referred Mr West to his statement where he said that he considered Mr Macklin’s misunderstanding as to his obligation to train contractors to be similar to Mr McNamara’s misunderstanding of his obligation to inform Mr West, as an employee representative, of the meeting of 31 May 2018. Mr West confirmed his views that the two circumstances were similar, and considered it very serious that Mr McNamara had not followed the 2018 Agreement. 67

[143] I asked Mr West whether in his experience as Lodge President at Goonyella whether he had been involved in other matters where an employee already possessing a ‘step 3’final written warning and subject to a further implementation of BHP’s Just Culture process had not been dismissed despite being involved in a further incident.

[144] Mr West recalled that he had been involved in a circumstance as described above where the relevant employee had not been dismissed, but had been suspended without pay for seven days.

[145] Mr West stated further that in his experience, allegations of different types of misconduct were often ‘siloed’ by BHP, so that they were at least partially distinguished in considering appropriate disciplinary action for an employee. Mr West’s understanding was that BHP categorised similar types of misconduct and had in the past distinguished misconduct where each instance of misconduct belonged to a different category. 68

[146] Mr West stated that in his experience, completion of a Just Culture process required input from the employee. Mr West stated that the ordinary process was for management to go through the process with an employee and their employee representative prior to disciplinary action being taken. Mr West considered that in the ordinary course, Mr McNamara would have completed the Just Culture proves in the presence of Mr Macklin and discussed the process while completing it.

[147] Mr West could not say whether Mr McNamara’s approach, to allow Mr Macklin an opportunity to show cause after completing the Just Culture process was ‘right or wrong’, only that it was not usual. 69

Evidence of Mr Colin Nelson

[148] Mr Nelson is an employee of BHP working at the Goonyella mine site as a Production Operator in the Prestrip department. Mr Nelson has worked at the Goonyella site for approximately 11 years. He has also held the position of Secretary of the Lodge for approximately 12 months. Prior to that, he was Vice-President of the Lodge for a further 12 months, and a shift delegate for five years.

[149] Mr Nelson has worked with Mr Macklin as part of Mr Macklin’s crew for approximately 10 years. He stated that he has found Mr Macklin to be polite and friendly throughout his dealings with him in the course of his employment.

[150] On 1 June 2018 Mr Nelson received a phone call from Mr West. He was informed by Mr West of a meeting that he had just participated in with Mr Macklin regarding the 28 May 2018 incident. Mr West asked Mr Nelson to attend a meeting that had been scheduled for 15 June 2018 with Mr Macklin, as Mr West was not able to attend. Mr Nelson was broadly informed by Mr West of the nature of the allegations against Mr Macklin and the explanation that had been provided of Mr Macklin’s misunderstanding.

Meeting of 15 June 2018

[151] Mr Nelson met with Mr Macklin privately on the morning of the meeting of 15 June 2018. Mr Macklin said that he had been mistaken of his obligations to train/assess contractors at the time of the 28 May 2018 incident. Mr Macklin appeared upset with himself for his misunderstanding.

[152] The meeting of 15 June 2018 commenced at approximately 7.30am. In attendance for BHP were Mr McNamara and Mr Edmunds. The meeting ran for approximately 20 minutes.

[153] Mr McNamara explained that an investigation of the 28 May 2018 incident had been conducted and it had been found that Mr Macklin’s conduct fell short of the ‘respect’ obligations contained in BHP’s Charter Values. Mr McNamara indicated that he did not believe Mr Macklin’s explanation that he had been mistaken as to his obligations to train contractors.

[154] Mr Nelson explained to Mr McNamara that Mr Macklin had been mistaken as to his obligations to train contractors, and that his misunderstanding had in part been contributed to by the implementation of the 2018 Agreement. Mr McNamara said that he considered it unacceptable that Mr Macklin had taken instructions from a CFMMEU delegate regarding his obligations, and not a supervisor. Mr Nelson explained that Mr Macklin had not been ‘instructed’ by Mr West; he had wrongly interpreted advice that he thought had been given to him by Mr West.

[155] Mr McNamara stated that Mr Macklin’s previous ‘step 3’ warning had contributed to his consideration to issue Mr Macklin with a notice to show cause. Mr Nelson stated that Mr McNamara did not otherwise explain the similarity of conduct or relevance of Mr Macklin’s previous ‘step 3’ warning.

[156] Mr Nelson sought, on Mr Macklin’s behalf and was granted an extension of time for Mr Macklin to provide his response to the show cause letter. Mr Macklin was informed that he would be stood down from his employment.

[157] Mr Nelson stated that Mr McNamara did not follow or implement the Just Culture process during the meeting of 15 June 2018. Mr Nelson stated, “[BHP’s] approach to this can be inconsistent but usually a just culture form is completed and explained to employee’s [sic] facing disciplinary action.” 70

Cross-examination

[158] In cross-examination, Mr Nelson agreed that in the course of undertaking his own role with BHP, he attended pre-start meetings at the commencement of each of his shifts and that at those meetings there would be occasions when Mr Nelson would be asked by a supervisor to perform tasks in the course of that shift. Mr Nelson agreed that there may be occasions when he would be asked to do something different during the course of shift. Generally, that would occur by a supervisor contacting or meeting with him and giving him oral instructions to complete a particular task. 71

[159] Mr Nelson confirmed his understanding that BHP held a broad discretion under the 2018 Agreement to direct employees to perform tasks which they are competent or authorised to perform. Mr West agreed that trainer/assessors are obligated under the 2018 Agreement to train any other person at a mine as directed by BHP. 72

[160] Mr Nelson confirmed his understanding that, as a trainer/assessor himself, he was required to train any person working at the Goonyella mine site, whether that person was a BHP employee, a labour hire worker or a contractor. Mr Nelson stated that he could recall training BHP employees and labour hire workers, but he could not recall ever having trained a contractor in the course of his employment with BHP. 73

[161] Mr Rauf produced to Mr Nelson a document describing names of persons that Mr Nelson had trained or assessed in the course of his employment. It was put to Mr Nelson that he had trained contractors in the course of his employment. Mr Nelson restated his understanding that none of the persons described he could recall having trained or assessed were contractors. BHP did not tender the document to be admitted into evidence.

[162] Mr Nelson confirmed his understanding that he would be required to train or assess a contractor if directed to do so. However, Mr Nelson noted that he would likely question a direction to train a contractor employed by Downer, since those contractors were ordinarily trained by persons employed by Downer. Mr Nelson stated that he would not refuse to train such a contractor, but he would ‘probably ask questions as to why’. 74

Macklin: Yes.

Commissioner: Over that incident.  Now, more than 12 months elapsed before you were issued with your next written warning which would have meant that your 2016 warning would have by virtue of the 12 months under this program have stepped back to a step 2?

Macklin: Yes.

Commissioner: And therefore the August 2017 warning is a step 3?

Macklin: Yes.

Commissioner: Do you understand that?

Macklin: Yes.

Commissioner: All right, so you've got a final written warning in 2016.  Because more than 12 months has elapsed your next written warning is also a step 3?

Macklin: Yes.

Commissioner: And then within 12 months we have this incident?

Macklin: Yes.  But - - -

Commissioner: So I expect the company is going to say "Well, you're on a step 3.  The next step is step 4 which gives us some flexibility as to what we want to do with you, because we've made findings"?

Macklin: Yes.

Commissioner: "That you've breached the charter and there's evidence of you not showing the appropriate amount of respect within the business"?

Macklin: Yes.

Commissioner: So what do you say about that?

Macklin: Well, between '16 and '17 I had three months to go and I would have succeeded in another year without incident, and I was working towards the expected rehabilitation basically and this incident, as I've stated, I didn't think that it was an issue.

Commissioner: So if the company had concerns about your ability to demonstrate respect in the workplace as Mr Rauf took you through the various performance reviews?

Macklin: Yes.

Commissioner: It does come up again.  The incident in the bus may be a respect issue?

Macklin: Yes.

Commissioner: The incident with the training may be a respect issue?

Macklin: Yes.

Commissioner: Then what could the company have done to work with you on this?

Macklin: Well, Commissioner, I accept the first two instances but the issue of respect for the company, it's just something for them to fall back on easily.  They just throw that at anybody.

Commissioner: Well, they - - -They haven't made these things up post-termination.  These things existed prior to the dismissal?

Macklin: Yes.  Yes.

…………..

Commissioner: It's just come up through various incidents and your annual reviews.  Now do you think that you had an issue with respect in the workplace?

Macklin: No, I don't because like I stated, the word "respect" is just an easy word for the company to fall back on.  There are - yes, I accept there is issues there that I accept.  Respect may have been an issue but in all incidents, all the IDPRs, it's just an easy word for them to fall back on.

Commissioner: They weren't just stating that issue.  There were complimentary statements within the reviews as well.  It was perhaps constructive criticism of "You're doing a good job in all these other areas but there's a respect issue in the workplace".  Now might that be true of somebody who's been there so long, who is so senior in the eyes of other employees, who thinks that - you know how this place operates and might it just come out over the year in your work performance to others?

Macklin: Through - yes, through my working day.  Yes.  If I'm doing a job that - a certain scenario, say I'm grading a section of road and truckies drive past me too fast.  They know there's a speed restriction past a grader that's operating.  Someone will go past.  We've got two separate radios in the machines.  Sometimes I grab the wrong radio to give the truckie a blast for doing the wrong thing and it'd be the mine two-way, it'd go over the whole mine and then the supervisor would come and have a talk to me and that's where then the IDPRs or any other time, they just fall back on the word "respect".

Commissioner: So if you were concerned that others were not acting appropriately or safely in that particular scenario, you'd give them a blast would you on the private radio?

Macklin: Yes.  On the CB radio.

Commissioner: Right, are you allowed to do that or is there a better way to inform somebody?

Macklin: Well, when it happens like that when you think everybody's going to follow the rules and bang, it happens, because you're not looking around you, you're looking at doing your job and it's just a shock so you  just grab the two-way and just give them a bit of a yell and tell them to slow down.  But I've had occasions to inform supervisors and had chats with supervisors when I was on pre-strip and on coal mining about that - those scenarios.

Commissioner: Right, so my question is are you allowed to - even if it was on the CB, are you allowed to challenge your co-workers whoever they might be about the concerns that you have about their behaviour or - you know, are you allowed to just go up to somebody and say "You're a n idiot.  You shouldn't be driving that fast" et cetera?  Are you allowed to do that or is there another method of bringing those concerns to your co-workers' attention that doesn't involve an instant, reactive statement that - I don't know - - -?

Macklin: Yes - - -

Commissioner: Does it contain profanities when you - - -?

Macklin: They're – every now and then there might be a profanity.  But when you've talked to them personally, face to face and then they still do it then it - yes, every now and then I'd give them a blast over the two-way, and like I said, I'd grab the wrong two-way and it'd go over the whole mine site.

Commissioner: Right, so do you say it's okay to give them the blast as long as it's private conversation?

Macklin: Well, I'm not saying it's okay but it's the norm.  It's what happens, because it's the private basically chat two-way.  So.

Commissioner: And if you are to return to the workplace you'll do that again, will you?

Macklin: I can't say I wouldn't, because of the job I do, getting run over by a 400 ton truck, it's not a very nice thing to be thinking about.  So I just looked at it as me keeping sure - making sure that everyone is still aware of what they need to be doing.

Commissioner: You earlier said that you've given people a blast and they still do it, so it's not working is it?

Macklin: But that's when I've taken - gone to the next step.  I've taken up the conversation with supervisors and the particular people have been chatted about doing it, which started resolving the problem.  So I went a long, long, long time without even having to get on the two-way other than to ask somebody to do something for me.  So it was - - -

Commissioner: So you're getting success, are you, if you speak to a supervisor and inform them of your concerns about particular people?

Macklin: Yes, and then they take the next step.  They have a conversation with people that are doing the job and they take it on board, and things start to get fixed.

Commissioner: All right, so do you think some of that activity that you've just described when you might blow up at a fellow worker might be reflective of the concerns raised in your annual reviews regarding respect?

Macklin: Yes, it - - -

Commissioner: Do you think that could be it?

Macklin: Yes, it can be reflected.  Yes, I will admit that.  Yes.

[530] The letter from Mr West at [326] states rather uncomplimentary things about Mr Marcklin’s workplace conduct and his ability to deal with others in the workplace.

[531] Ms Mouat’s evidence relevant to reinstatement is detailed in [182-184] and [197-202].

[532] Mr McNamara’s evidence relevant to reinstatement is detailed in [241 – 242] and [289 – 292].

[533] Mr Rivers’ evidence is, as I understand it, he would not be particularly concerned, and considers that it might just be awkward. It is noted that Mr Rivers is now supervising ‘D Crew’.

[534] BHP submitted that it has a rational basis for its loss of trust and confidence in Mr Macklin. It is submitted that BHP maintains a very real concern about his attitude as to his engagement with other workers and also his interactions with supervisors in respect of feedback and behavioural issues.

[535] In support of this, BHP cites the following matters:

(a) Final warning dated 17 August 2017 – the training course incident – Mr Macklin resisted acknowledging or accepting that his conduct in respect of the trainer was unacceptable and inappropriate. At most he agreed that he could have handled the situation a lot better. He agreed in cross-examination that Mr Paton, the person attending the training course and assisting Ms Shanks had no right to say anything to Mr Macklin, and as far as Mr Macklin was concerned he could ‘shut up’.

(b) Final warning dated 18 March 2016 – the bus incident – Mr Macklin refused to accept that his behaviour to the female bus driver was disrespectful despite it involved him refusing an instruction and speaking to her in derogatory terms based on her gender. In cross-examination he stated that he didn’t think he was disrespectful.

(c) Individual development and performance review processes - different supervisors between 2015 – 2017 have all stated the effect that Mr Macklin does not follow the Charter Values, and he needs to respect other workers. In cross-examination, Mr Macklin refused to accept that there was a proper basis to those views and dismissed them as the opinion of others. He repeatedly stated that even if they are the opinions of Supervisors, he does not have to agree with their opinion of him. It is clear that Mr Macklin has no regard for the views of his Supervisors relevant to Mr Macklin’s meeting of Charter Values.

(d) Misconduct on 28 May 2018 – it creates the likely scenario in the future that if Mr Macklin has a particular view (mistaken or otherwise) which conflicts with an instruction issued by a supervisor, he considers it appropriate to refuse the instruction and, he is subsequently found to have been incorrect, then he can admit to it being a mistake and lapse of the judgement.

(e) It is relevant that Mr Macklin considers it appropriate that he can engage with other workers by giving them a “reactive blast on an all mine radio”, as he confirmed in response to a question asked of by the Commission.

[536] BHP submitted that it has a rational and proper basis on which to maintain its concerns about Mr Macklin’s conduct and that, despite that he has previously received two written final warnings, such behaviours will continue to occur given his resistance to change and feedback from supervisors, and unwillingness to accept that the interactions referred to above were disrespectful, inappropriate and unacceptable in the workplace.

[537] It is contended that reinstatement is inappropriate, and compensation is the appropriate remedy.

Conclusion on reinstatement

[538] I have had regard to all of the evidence of the witnesses and Mr Macklin’s disciplinary record, together with his individual development and performance reviews.

[539] I am mindful of Mr Macklin’s age and the likelihood of him securing alternative employment in a regional centre.

[540] I have had due regard to Macklin’s very lengthy service. It must be said, however, that simply because a person has a very lengthy period of service, they are not guaranteed a job for as long as they wish to hold it. A lengthy period of employment will not excuse inappropriate behaviour or misconduct warranting dismissal.

[541] Mr Macklin was an experienced and senior Operator. He was receiving a high level of remuneration.

[542] I accept that over very recent years Mr Macklin has behaved poorly in specific circumstances. He has undoubtedly acted disrespectfully. Relevant to the bus incident, I consider that he was acting like a class clown, effectively informing the female bus driver that she had to pay more attention to driving than worrying about his seat belt being on because, after all, she is female.

[543] In an era when mine operators are doing their best to attract female workers, it is not helpful if a near-60 year old man with decades of experience takes it upon himself to belittle a female bus driver in a bus full of, presumably, men. The driver is likely to have been humiliated. Where Mr Macklin could not agree in cross-examination that he was disrespectful to the driver, he agreed when questioned by me that the bus driver probably was humiliated, and when he discovered she was upset, he sought permission to apologise to her.

[544] Relevant to the training course conduct, I consider that Mr Macklin behaved incredibly poorly. He showed contempt for the training, and in doing so, was extraordinarily disrespectful to Ms Shanks, and then Mr Paton. I find that he did make inappropriate references to breastfeeding in the workplace. It took one and a half days for Mr Macklin to remedy his conduct. It is easy to presume that other participants in the course were aware Mr Macklin was employed by BHP, and accordingly, he was, for the first day and a half, disgracing BHP’s reputation.

[545] That Mr Macklin cannot recognise and concede his conduct during the training course was extraordinarily inappropriate is concerning. I consider that Mr Macklin has become ‘far too big for his boots’ in the manner in which he sometimes addresses people.

[546] In some respects, Mr Macklin might be considered to be a workplace ‘dinosaur’ on account of his conduct and demonstration of disrespect, at times. He has been employed by the one employer for 38 years, and like the character Brooks Hatlen in The Shawshank Redemption, he appears to me to have become institutionalised; resistant to change and outside pressures. He doesn’t know how other workplaces operate, and how over the many years since 1980 when he was first employed, workers across all industries have adapted to change, welcomed greater female participation, including more women in senior roles. Men are now often told what to do by women in the workplace, probably a rare scenario in the early 1980’s.

[547] That being said, I do not accept that he acted inappropriately around Ms Mouat during the pre-start meeting by repeating her comments or at times speaking loudly. I consider it a petty and trivial throw-away by Ms Mouat to cast doubts on the appropriateness of reinstatement. Simply repeating what Ms Mouat said on one occasion does not lead me to conclude that Mr Macklin acted disrespectfully or inappropriately to Ms Mouat. I consider that despite Mr Macklin probably not having much regard to Ms Mouat because of her gender and her relatively young age, he knew that as his Supervisor, Ms Mouat was to be spoken to appropriately and afforded respect in the workplace. I also note that Ms Mouat is now Supervisor of an alternative crew.

[548] It would serve Mr Macklin well to demonstrate some humility and modesty in the workplace. Despite being concerned relevant to alleged safety breaches and speeding in the workplace, he is not king of the all-mine radio, nor should he be of the more localised CB radio. He should not be taking it upon himself to give people a ‘blast’ on the radio, sometimes using profanities. There are far better ways to go about getting a point across and ensuring safe measures are in place. He might be cautioned to say something to this effect over the localised CB radio:

“[name], I have just observed you [speeding/acting recklessly], and I note the time is [time]. I will be reporting my observation to the Supervisor. Please think of your safety and safety of your fellow workers.”

[549] When I suggested to Mr Anderson in oral closing submissions that perhaps Mr Macklin had, in recent years, become a bit too big for his boots, a bit cranky and disrespectful, he suggested that if BHP had considered that to the case, and 38 years is a very significant period of time, the course of action is not to dismiss an employee or give them warnings; education would go a long way. Special measures could be taken to put in place a performance improvement plan and monitoring the conduct and providing training.

[550] Having regard to my findings about the dismissal, and noting the above statements, I do not consider that relevant to the dismissal that took place on 28 June 2018 it is inappropriate to reinstate Mr Macklin. I do not agree with BHP that it has a rational and proper basis for its loss of trust and confidence in Mr Macklin.

[551] Mr Macklin cannot escape his past conduct and the findings of the Commission and comments made above. In a public decision where the Commission has castigated Mr Macklin relevant to the 2016 bus incident and the 2017 training course incident, for which he properly received written warnings, on reinstatement, Mr Macklin is properly advised to get on with his work, follow direction, embrace change and above all, be respectful to all he encounters, whether he agrees with them or not. He should not, however, suffer the significant detriment of losing a well-paying job in a role he has been in for a very long time, where he has been unfairly dismissed.

[552] I note Mr Rivers is now supervising ‘D Crew’. If in future Mr Rivers is Mr Macklin’s Supervisor, on my observation of Mr Rivers, he will simply get on with the task, and he will not hold any resentment towards Mr Macklin, nor Mr Macklin to him. Mr Rivers appears to me to be a sensible fellow who will easily overcome any perceived awkwardness.

[553] I have chosen to exercise my discretion and consider it appropriate in the circumstances to order, pursuant to s.391(1) of the Act, that Mr Macklin be reinstated to the position he held immediately before his dismissal.

[554] I consider it appropriate in the circumstances to order reinstatement from 7 January 2019 on account of the Christmas and New Year period.

Order to maintain continuity

[555] Section 391(2) of the Act provides as follows:

‘Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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.’

[556] In all the circumstances, I consider it appropriate to make an order pursuant to s.391(2) to maintain the continuity of the employment and the period of continuous service for all purposes, other than in respect of:

(a) the accrual of long service leave in the period between termination and reinstatement; and
(b) the accrual of annual leave in the period between termination and reinstatement; and
(c) the accrual of personal leave in the period between termination and reinstatement.

Order to restore lost pay

[557] The relevant considerations when determining if lost pay should be ordered are set it in ss.391(3) and (4) of the Act:

‘Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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), the FWC 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.’

[558] Both parties made submissions with respect to this issue. For Mr Macklin it was submitted the Commission should award Mr Macklin full back pay for the period 28 June 2018 to 2 October 2018 when he filed his first witness statement, less the five weeks already paid to him as notice. Following 2 October 2018, Mr Macklin concedes that he made no attempts to mitigate his loss.

[559] The five week paid notice period from 28 June 2018 took Mr Macklin through until 1 August 2018. The period 2 August 2018 to 2 October 2018 is approximately nine weeks.

[560] BHP contended that if Mr Macklin was not reinstated, he would likely have been dismissed within four and six months, given his history and recent repetitions. Mr Rauf did not cavil with an award of full payment for the period between 2 August 2018 and 2 October 2018.

[561] On the issue of an award of compensation, as opposed to an order for back pay, BHP submitted that any award of compensation should be reduced by 20% for misconduct, and for the period beyond 2 October 2018, a further deduction of 50% for informed and deliberate failure to mitigate, such that any payment ordered for beyond 2 October 2018 would only be paid at 30% of the amount.

[562] As to an order for back pay in the event the Commission ordered reinstatement, BHP submitted that the amount ordered should be nil, notwithstanding the five weeks’ notice already paid to Mr Macklin. The submission was made that if reinstatement is ordered the amount ordered should be nil on account of Mr Macklin’s conduct, and there needs to be a very clear message about the inappropriateness of his conduct.

[563] In reply, Mr Anderson submitted that if there were to be deduction on account of misconduct, it would be at around 10% only. A further 20% for failure to mitigate would be warranted.

[564] I have had regard to the Full Bench decision in B, C and D v Australia Postal Corporation T/A Australia Post[2013] FWC 9293 at [118](b) where it was held:

‘There must be a significant discount in order for backpay to reflect the fact of the Appellants’ misconduct, quite apart from any other discounts that may be appropriate to reflect a “fair go all round”, particularly in light of the delay in the resolution of these matters. Obviously income earned in the intervening period must be brought to account.’

[565] Subsequent to that Full Bench decision, presiding member Lawler VP determined the quantum to be awarded:¹⁵⁹

‘I consider that a discount of 75% on the calculated loss is appropriate to reflect both the misconduct and the inappropriateness, in the peculiar circumstances of this case, of holding Australia Post liable for the whole of the very long period that the course of the unfair dismissal applications have taken thus far.’

[566] Having regard for my reasons in the decision and the submissions of the parties and the authorities on the matter of lost pay detailed in this decision, I consider it appropriate to exercise my discretion to make an order for the restoration of some lost pay.

[567] Such order will take into account an amount for the remuneration lost, or likely to have been lost by Mr Macklin due to the dismissal. However, I consider it would have been appropriate to stand Mr Macklin down without pay for no more than 14 days on account of his failure to follow Mr Rivers’ direction, given the 2018 Agreement provides for such a course, and Mr Macklin was already in receipt of a final written warning.

[568] It is very disappointing that upon filing his first witness statement on 2 October 2018, Mr Macklin has made no effort to secure alternative employment. I do not consider it appropriate to make an order of back pay from 2 October 2018 other than at the rate of $1,750 per week. This is a significant discount from the approximate $2,900 per week Mr Macklin was receiving pursuant to his $151,999.64 annual salary. It represents approximately 60% of the full rate. Demonstrated efforts to mitigate the loss of employment would have yielded a smaller or no discount to the annual salary.

[569] I detail below the calculations that I will order BHP to make to Mr Macklin, noting the annual salary of $151,999.64 is an amount of $2,923.07 per week:

Nine weeks’ payment (2 August 2018 – 1 October 2018)

$26,307.63

Less 14 days (2 weeks) Mr Macklin should have been stood down with pay pursuant to the 2018 Agreement

$5,846.14

Less any earnings

Nil

An amount of $1,750 per week from 2 October 2018

until the date of this decision = 13 weeks

$22,750.00

A further amount of $1,750 for the period 1 January 2018

to 7 January 2018 to cover the period between the order and the period of the actual reinstatement, noting the holiday period and the likelihood of being able to reintroduce Mr Macklin to the workplace in the first week of January 2019

$1,750.00

Total

$44,961.49

Conclusion

[570] Mr Macklin will be reinstated to his former position effective 7 January 2018.

[571] I have determined that BHP is to pay to Mr Macklin the amount of $44,961.49 less taxation as required by law. I consider that remuneration lost, pursuant to 391(3) is broad enough to include superannuation, and note other decisions of the Commission include an order for payment of superannuation on backpay. It is not clear to the Commission the rate of superannuation payable, however I shall order the payment of the Superannuation Guarantee Legislation amount of 9.5% to be paid into Mr Macklin’s superannuation fund. This is an amount of $4,271.34.

[572] A separate order will issue giving effect to this decision.

COMMISSIONER

Appearances:

Mr Rowan Anderson, Construction, Forestry, Maritime, Mining and Energy Union, for the Applicant;

Mr Bilal Rauf, Herbert Smith Freehills, for the Respondent.

Hearing details:

Mackay, 15 & 16 November 2018;

Brisbane, 29 November 2018.

Final written submissions:

Final written submissions for the Applicant, 28 November 2018;

Final written submissions for the Respondent, 28 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR702913>

 1 Statement of Mr Gregory Macklin, 2 October 2018, [3] – [9].

 2 Ibid, [10] – [13].

 3   Statement of Mr Lachlan McNamara, 30 October 2018, LM-28, Clause 5.

 4   Ibid, Clause 8, Clause 10, Appendix 1, Appendix 2.

 5   Ibid, [13].

 6   Ibid, [14].

 7   Ibid, [15].

 8 Ibid, [24] – [26].

 9 Ibid [34].

 10 Ibid, [34] – [36].

 11 Ibid, [37], [41] – [42].

 12   Ibid, Attachment GM-02.

 13   Statement of Mr Gregory Macklin in Reply, 9 November 2018, [32].

 14   Statement of Mr Gregory Macklin, 2 October 2018, Attachment GM03.

 15   Ibid, GM04.

 16   Ibid, GM05.

 17   PN77 – PN103; BMA Enterprise Agreement 2012 cl. 4.1, 4.4, 6.1; BMA Enterprise Agreement 2018 cl 4.1, 6.1.

 18   PN139 – PN145.

 19   PN170 – PN173.

 20   PN201 – PN206.

 21   PN184 – PN189.

 22   PN679 – PN680.

 23   PN403.

 24   PN404 – PN411.

 25   PN419 – PN430.

 26   PN426.

 27   Statement of Ms Rosemary Shanks, 30 October 2018, RS-02.

 28   Statement in Reply of Mr Gregory Macklin, 9 November 2018, [63].

 29 Ibid, [66] – [67].

 30   Ibid, [61].

 31 Above n 1, [20] – [23].

 32   Statement of Ms Rosemary Shanks, 30 October 2018, RS-02.

 33   PN235 – PN268.

 34   PN366 – PN369.

 35   PN683 – PN689.

 36   PN2487 – PN2505.

 37   Statement of Mr Lachlan McNamara, 30 October 2018, LM-24.

 38   PN447 – PN455.

 39   Statement of Mr Lachlan McNamara, 30 October 2018, LM-25.

 40   Statement of Mr Lachlan McNamara, 30 October 2018, LM-26.

 41   PN481 – PN508.

 42   PN558 – PN559.

 43   PN595 – PN607.

 44   PN598 – PN599.

 45   PN635 – PN644.

 46   PN693 – PN695.

 47   PN710 – PN720; PN749.

 48   PN746.

 49   PN758 – PN766.

 50   Statement of Mr Lachlan McNamara, 30 October 2018, LM-13.

 51   Ibid, LM13, Part 5.

 52   PN735 – PN743.

 53   PN834 – PN843.

 54   PN791.

 55 Statement of Mr Simon West, 2 October 2018, [6] – [16].

 56 Ibid, [24] – [28].

 57   Ibid, [29] – [34]; Statement in Reply of Mr Simon West, 9 November 2018, [39] – 40].

 58   BMA Enterprise Agreement 2018, 38.4.

 59   Statement in Reply of Mr Simon West, 9 November 2018, [3].

 60 Statement of Mr Simon West, 2 October 2018, [37] – [44].

 61   Statement in Reply of Mr Simon West, 9 November 2018, [21].

 62 Ibid, [6] – [7].

 63   Statement in Reply of Mr Simon West, 9 November 2018, [14].

 64   PN990 – PN1007.

 65   PN1031 – PN1034.

 66   PN1099 – PN1102.

 67   PN1056 – PN1065.

 68   PN1104 – PN1121.

 69   PN1123 – PN1140.

 70   Statement of Mr Colin Nelson, 2 October 2018, [12].

 71   PN1415 – PN1418.

 72   PN1434 – PN1444.

 73   PN1465 – PN1476.

 74   PN1528 – PN1547.

 75   Statement of Ms Melissa Mouat, 31 October 2018, [14].

 76 Ibid, [15] – [18].

 77 Ibid, [34] – [36].

 78 Ibid, [26] – [28].

 79   Ibid, [39].

 80   PN1733 – PN1738.

 81   PN1740 – PN1750.

 82   PN1765 – PN1768.

 83   PN1787 – PN1794.

 84   PN2185 – PN2195.

 85   PN2214 – PN2220.

 86   PN2223.

 87   PN2228 – PN2240.

 88   PN2375 – PN2385.

 89   PN2299.

 90   Statement of Mr Lachlan McNamara, 30 October 2018, [21].

 91   Ibid, [24].

 92   Ibid, [25].

 93   Ibid, [26].

 94 Ibid, [34] – [36].

 95   Ibid, [38].

 96   PN2529 – PN2533.

 97   PN2531.

 98   Statement of Mr Lachlan McNamara, 30 October 2018, [44].

 99   Ibid, [52].

 100   PN2543.

 101   Ibid, [74].

 102   Ibid, [86]; PN2553.

 103   PN2824 – PN2826.

 104   PN2828 – PN2834.

 105   PN3166 – PN3180.

 106   PN3217 – PN3227.

 107   PN3230 - PN3239.

 108   PN2931 – PN2957.

 109   PN2969 – PN2971.

 110   PN2972 – PN2983.

 111   PN3055.

 112   PN2565 – PN2567.

 113   Exhibit A7.

 114   Ibid.

 115   PN2618; PN2655.

 116   PN2578; PN2675 – PN2676.

 117   PN2762.

 118   PN3272 – PN3279.

 119   PN2835 – PN2838.

 120   PN3160 – PN3161.

 121   PN3747 – PN3795.

 122   PN2857 – PN2859; PN3658 – PN3663.

 123   PN3456.

 124   PN3510 – PN3514.

 125   PN2873; PN2879 – PN2880.

 126   PN3531 – PN3534.

 127   PN3465 – PN3466.

 128   PN3574.

 129   PN3575 – PN3580.

 130   PN3581 – PN3584.

 131 Statement of Mr Phillip Rivers, 30 October 2018, [17] – [18].

 132   Statement of Mr Phillip Rivers, 30 October 2018, [15].

 133   PN3890.

 134   Statement of Mr Phillip Rivers, 30 October 2018, PR-01.

 135   PN3964.

 136   PN4297 – PN4307.

 137   PN4123 – PN4124.

 138   PN4110 – PN4122.

 139   PN4150 – PN4168.

 140 Statement of Ms Rosemary Shanks, 30 October 2018, [5] – [8].

 141   Ibid, [26]; Attachment RS-01.

 142   Ibid, [11].

 143 Ibid, [11] – [15].

 144 Ibid, [17] – [18].

 145   Ibid, [19].

 146 Ibid, [20] – [25].

 147   Ibid, [27]; [31] – [34].

 148   PN3146-3151.

 149   PN3190-3191.

 150   Rail Corporation New South Wales v Vrettos (2008) 176 IR 129.

 151   King v Freshmore (vic) Pty Ltd Print S4213, 17 March 2000 at [24].

 152   RMIT v Asher (2010) 194 IR 1 at 14-15.

 153   Marc Waters v Mt Arthur Coal Pty Limited T/A Mt Arthur Coal Pty Limited[2018] FWC 3285 at [129].

 154   PN2936.

 155   PN2938.

 156   PN2972.

 157 (2003) unreported, PR931440 at [30].

 158   PN767-PN809.

159 B, C and D v Australian Postal Corporation T/A Australia Post (C2011/6623) at [22].