Mr Keith Ager v BHP Billiton Minerals Pty Ltd
[2013] FWC 8198
•24 OCTOBER 2013
[2013] FWC 8198 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Keith Ager
v
BHP Billiton Minerals Pty Ltd
(U2013/1551)
Mr Simon Fleming
v
BHP Billiton Minerals Pty Ltd
(U2013/1552)
Mr Jeremy Graham
v
BHP Billiton Minerals Pty Ltd
(U2013/1553)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 24 OCTOBER 2013 |
Summary: whether harsh etc - inferential and direct findings - whether three employees untruthful to their employer during an investigation about their use of equipment on a shift - safety rules - loss of trust and confidence.
[1] On 13 May 2013, Mr Simon Fleming, Mr Keith Ager and Mr Jeremy Graham (together referred to as “the Applicants”) each made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of their dismissals for alleged serious misconduct by BHP Billiton Minerals Pty Ltd, trading as BHP Billiton Cannington (“the Respondent”).
[2] There are no jurisdictional impediments to these applications. The Respondent is a national system employer. The Applicants are each protected from unfair dismissal for the purposes of s.382 of the Act; they were dismissed for the purposes of s.385(a) of the Act; the Small Business Fair Dismissal Code is irrelevant for the purposes of s.385(c) of the Act; and the dismissal in each case was not a case of genuine redundancy for the purposes of s.385(d) of the Act.
[3] In essence, the Applicants were each dismissed for failing to be truthful to their employer in the course of an investigation into an alleged serious breach of the site safety procedures relating to pre-start inspections on warehouse equipment/machinery. More particularly, the Respondent alleged that during the night shift of Sunday 10/Monday 11 March 2013 (hereafter referred to as the “10 March shift” or “Sunday 10 March Shift”), the Applicants operated warehouse equipment/machinery to undertake warehouse tasks (and other duties in the storage yard) without performing pre-start safety checklists, which the Respondent contends is a safety requirement it imposes on its employees by way of its policies and procedures. The Applicants each denied they did so. The Respondent found otherwise, and dismissed the three Applicants.
Permission to appear: s.596 of the Act
[4] The Australian Workers’ Union (“the AWU”)(representing the Applicants) indicated in writing, some two days prior to the hearing, that it objected to the Respondent being represented by a legally qualified representative or paid agent for the purposes of s.596 of the Act and written submissions were received in support of this position. I decided the issue of representation on 10 September 2013. That decision is as set out in the following.
[5] A directions conference was conducted on 27 August 2013. At that time permission to appear for purposes of that conference and for the substantive hearing was granted to Counsel for the Respondent. There was no objection taken to the appearance of Counsel. Nonetheless, I orally conveyed my reasons at the time for granting permission to appear.
[6] Some short time prior to the hearing, the AWU objected to the appearance of Counsel, thus requiring me to revisit this same matter. I can only presume the AWU had not been attentive to the discussions at the commencement of the directions conference of 27 August 2013, or else had formed a view that the decision regarding permission to appear was in respect of the directions conference, and not more broadly.
[7] The reasons I gave at the time for granting permission to appear under s.596 of the Act included the reasons given further below.
[8] Before turning to these reasons I will cite the case for seeking permission to appear under s.596 of the Act as provided by the Respondent, which is placed in particular circumstances owing to the nature of this case being alleged misconduct relating to deliberate dishonesty. The Respondent’s case for permission to appear is as follows:
1. At the telephone hearing conducted on 27 August 2013 in relation to the Respondent’s application for the conduct of a site inspection, the issue of permission to appear was dealt with, both in terms of that telephone hearing and also the substantive hearing, after the issue was raised by the Respondent’s Counsel. Mr McKernan for the AWU said that he did not intend on objecting to permission to appear, and on that basis, plus his Honour’s reference to the case being conducted more efficiently through Counsel (because of the detailed cross-examination that may be required), permission to appear was granted by his Honour, including for the substantive hearing.
2. On the faith of that position, the forensic preparations for the conduct of this case, including the preparations for cross-examination, have since that time continued to be conducted by Counsel. Further, Counsel and myself (on behalf of the Respondent), are already in Townsville preparing for the case (having flown up early this morning), and have booked accommodation for the week and return flights on Friday evening. In these circumstances, it would be comparatively unfair on the Respondent to now have to appear without legal representation (s.596(2)(c)). To revoke permission now, would mean that the entire hearing would have to be adjourned and relisted, in order to enable the Respondent to adequately prepare its case without legal representation. Dealing with the matter of permission at this late stage is also inconsistent with the Commission’s new practice of having the issue of permission determined at an early stage, so as to avoid these very types of issues from arising.
3. Further and in any event, the conduct of these proceedings will be far more efficient with Counsel involved (s.596(2)(a)). Whilst it is true that the central issues in dispute are factual, not all factual disputes, nor their resolution are simple. The Commission’s assessment of the evidence, and the question of whether the alleged misconduct occurred, will be assisted by effective, forensic cross-examination of the Applicants’ evidence, and the case concept which they present. This is most efficiently done through experienced Counsel.
4. Further still and finally, if it be accepted that the Respondent has the onus of establishing the alleged misconduct (in this case, deliberate dishonesty), in circumstances where each Applicant directly denies this misconduct in their evidence, it would be comparatively unfair to the Respondent (s.596(2)(c)) to have to meet that burden, without experienced Counsel effectively testing the Applicants’ accounts. The Commission should not assume (and would most probably know from its own experience), that human resources personnel, including those with legal experience, can effectively and efficiently conduct forensic cross-examination of witnesses.
[9] Based upon the materials before me, and noting the wider circumstances of the case, my views about this application for permission to appear - which were conveyed to the parties on 10 September 2013 by email correspondence - are as follows:
- as the matter turns critically upon issues of credit, the matter requires a significant reliance upon cross examination across three applicants being heard - in effect at the same time - and an experienced person who is a lawyer or a paid agent would assist in the efficient conduct of the matter; and
- it also would be fair, assist in the efficient conduct of the matter, and allow the Respondent to represent itself effectively to extend permission to appear to the Respondent’s representative. This is because (amongst other reasons), the Respondent’s legal representative will assist in the overall conduct of the matter, the marshalling of the evidence, carrying out three sets of cross examination and re-examination, making reference to authorities and commentating on the same, carrying out of closing submissions based on the ordering of evidence across three applications and multiple sets of examination, and generally managing the Respondent’s risks (including where the Respondent shoulders some measure of onus in a contested evidentiary context, and noting also that the Respondent is in a costs jurisdiction and where there is exposure also to an active appellate jurisdiction as well).
- Whether or not the Respondent has Human Resource staff or not, and whether one or more of those staff are legally qualified or not, does not affect my judgment in this regard. The circumstances of the various applications are persuasive of the justification of the appearance of a lawyer, in accordance with s.596 of the Act.
I have taken into account the submissions of each of the parties in relation to the requirements for permission to appear in this matter under s.596 of the Act. I have decided to grant permission to appear for the Respondent’s representative on the basis that:
Summary of the Arguments and Evidence
[10] The Applicants each had been employed as an Administrator - Warehouse Control at the Respondent’s Cannington site. Such positions might once have been referred to as warehouse storeman roles.
[11] Mr Fleming had been employed at that site since 4 November 2008. Mr Ager had been employed since 7 February 2011 and Mr Graham since 20 February 2012. Each of the Applicants had been dismissed on the same date: 24 April 2013.
[12] It is important to note at this early juncture, as I have sought to suggest above, that the Applicants were not dismissed because of serious misconduct solely in relation to the alleged beaches of the Respondent’s safety procedures. Rather, the Applicants were each dismissed because the Respondent came to believe they had each deliberately lied in responding to questions in the course of the Respondent’s investigation into the safety breach. The Respondent therefore could not have trust and confidence in the Applicants, it argued.
[13] The Respondent alleged that the Applicants had verbally confirmed to Mr Patrick Flood (Superintendent, Warehouse and Inventory) on 11 March 2013 that they had failed to complete a pre-start on commencement of work during the night shift of 10 March 2013. The shift ran across 10-11 March 2013.
[14] There is no contest that pre-start safety checks are a requirement of the Respondent’s policies and procedures, or that the Applicants in each case were aware that that obligation fell upon them as employees.
[15] Clause 4.6.2 of the Cannington Traffic Management Plan (PRO-CD4148) provides as follows:
4.6.2 Pre-Start inspections
Prior to operation, the first operator of the shift must check all features and components of the vehicles as per the pre-start book for that vehicle. The completed pre-start book is to be left with the vehicle. Each vehicles pre-start checklist shall specify three categories of pre-start requirements:
Category 1: requirements must be met prior to the vehicle being operated.
Category 2: authorisation to operate the vehicle is required from a mobile make the supervisor where these requirements are not met.
Category 3: the vehicle may be operated even if these requirements are not met, however the defect must be documented and reported as appropriate.
[16] But beyond these procedures, there was also another layer of prescribed procedure applicable to the warehouse, which the Applicants understood. This procedure was that all employees were to undertake a safety check of their vehicles at the commencement of each shift. That is, rather than leave the safety checks to the point of operation (as the Traffic Management Plan does), employees in the warehouse were obligated expressly to conduct a safety check of all vehicles they ordinarily use in the course of their work as a more comprehensive means of ensuring safety outcomes.
[17] The elemental issue for consideration in the circumstances of each of the Applicants is whether or not they were deliberately dishonest in that they lied to their employer about the use of loading equipment on the shift in question, in order to evade any potential disciplinary action against them for breaching the pre-start safety checklist requirements set out above.
[18] The Applicants understood these requirements and there had been a deal of communication on the importance of carrying out such pre-start checks, which was conveyed through tool box talks and other means (such as e-mails). There had been a “concerted effort” by the Respondent (through Mr Bart Courtney, Manager - Supply) to emphasise safety in the supply function, and this extended to ensuring 100% compliance with pre-start requirements.
[19] The Respondent’s view was that there was evidence - to be discussed further below - to the effect that the Applicants had each indeed operated mobile equipment during the night shift on 10 March 2013, without the pre-start being completed on the mobile equipment. The Respondent could not believe, as it were, that three storemen could complete a 12 hour shift each on a large warehouse site covering some 8 hectares with multiple muster points and widely dispersed work areas, which stores and relocates many heavy and irregular sized items (sometimes not at ground level), without the use of machinery.
[20] But of graver significance by far was the view formed by the Respondent that the Applicants had engaged in deceptive and dishonest conduct in failing to acknowledge to it the use of warehouse equipment/machinery during the rostered shift on 10 March 2013. The Applicants, of course, rejected this claim, as I will set out below (firstly in summary and then in detail).
[21] The Respondent considered the conduct, as they found it to be, to constitute serious misconduct and be a direct contravention of the BHP Billiton charter, BHP Billiton code of business conduct and company policies and procedures (such as PRO-CD4148, referred to above).
[22] The Respondent contended that it had provided the Applicants with a number of occasions on which to acknowledge use of the relevant machinery during the night shift of 10 March 2013, but the Applicants had been untruthful as to their conduct on that night. I add that in this respect the Respondent had put the Applicants on notice at various occasions during the interactions that their conduct over the course of the investigation process would be relevant to any ultimate outcomes.
[23] The Respondent claimed it had consequently lost trust and confidence in the ability of the Applicants to demonstrate work performance and work conduct required of their positions. Each Applicant was dismissed summarily, as a consequence.
[24] The Applicants’ own evidence painted a more complex picture.
[25] The Applicants claim that on the evening prior to the alleged incident – Saturday 9 March 2013 – a planned computer system outage was executed. There is no dispute between the parties as to the fact of the 1SAP outage.
[26] Prior to the computer system going off-line a printout was made of all the items that would otherwise have been required to be picked for planned maintenance needs. On that evening all of the required goods were picked for the subsequent evening and placed in the lay down area.
[27] The Applicants contended that as a consequence, there was no requirement to use any machinery to pick the relevant goods on the night in question, and all that was required was to issue the goods, which is a data entry function into the 1SAP system, which was again on-line.
[28] The Applicants had all issued completed pick data into 1SAP and in some cases had signed off on pick confirmation documentation which was dated 10 March 2013. Much was said in the proceedings about these matters. Notwithstanding this, here the Applicants all argued that whilst the records all may indicate 10 March 2013 as being the date of the pick, the pick itself - being the physical act of identifying and relocating the item/s to a muster point - was completed on the previous night’s shift with only the administrative process in 1SAP being completed on 10 March 2013.
[29] Because they were not using machinery to do picks, the Applicants largely (at least) contended that the shift comprised relatively light duties. Mr Ager described the shift as comprising long breaks, yarns between the crew members, some cleaning and data entry. Mr Fleming said the shift was “cruisey” as all the hard work had been done for the shutdown on the earlier shift. Mr Graham said the shift had been quiet and uneventful, and once the liners had been checked in the yard he carried out posting and then did some cleaning.
[30] Notwithstanding this, all the Applicants had described the shift to the Respondent in their responses to the correspondence of 22 March 2013 as involving “a high turnover of materials”.
[31] Mr Ager acknowledged that the Respondent claimed that he was seen operating a machine (by the Applicants’ supervisor). But he disagreed with that evidence, and argued that the witness concerned (Mr Gimbert, whose evidence is discussed immediately below) must have been confused and/or mistaken. Mr Gimbert also came to claim he witnessed Mr Graham using loading machinery, but Mr Graham was to deny he did so.
[32] The Applicants argued that they therefore were all innocent of the charges levelled against them by their employer.
[33] So much provides a broad background of the matter. It is necessary to turn now to the detailed evidence.
[34] I will deal firstly with the written evidence of Mr Gary Gimbert, for the Respondent. Mr Gimbert was a Warehouse Co-ordinator at the Cannington mine.
[35] Mr Gimbert supervised a crew of warehouse storemen, which comprised the three Applicants. Mr Gimbert’s evidence is central to the Respondent’s case. This is because his evidence goes to the claim of misconduct levelled against each of the Applicants in so far as it reflects on the behaviour of the three employees on the shift in question. Mr Gimbert’s wider evidence as it came to be is considered in my considerations of the merits of the case.
Mr Gimbert’s Evidence
[36] Mr Gimbert’s general evidence was that all work tasks carried out in the warehouse on any shift required the operation of loading machinery, such machinery being essentially the “tools of trade.” The gist of the evidence of Mr Gimbert was that there is very limited opportunity for manual handling of any of the goods and equipment that is stored and relocated within the confines of the warehouse and outside yard.
[37] He contended that the workload on the night in question was greater than at previous times for reasons of a pending shutdown commencing, and that it was necessary during that shift to pick and relocate product to the relevant lay down areas.
[38] Mr Gimbert gave evidence that the usual practice of his crew was that Mr Graham completed the pre-start of the loading machinery in the outside yard; and Mr Ager and Mr Fleming completed the pre-start of the loading machinery that was inside the warehouse itself. Whilst Mr Gimbert stated that this was not always the case, this was nonetheless the general approach that the crew adopted. When the pre-starts were completed the crew would hand to Mr Gimbert a copy of the completed pre-start forms which he would then countersign. It was Mr Gimbert’s role to ensure that any vehicle that required maintenance was attended to or that any vehicle that could cause damage or put a person at risk of injury was isolated.
[39] Mr Gimbert corroborated the claims of the Applicants in respect of the planned outage of the 1SAP system on the shift of Saturday 9 March 2013.
[40] But other than in that respect he did not recall anything unusual about the operation of the shift on 10 March 2013.
[41] Mr Gimbert expressly recalled that the shift on 10 March 2013 required a lot of work to be done in and about the external yard. This was particularly so in respect of the manual selection of heavy bolts. He further recalled that such work is most efficiently completed during daylight hours. He instructed the Applicants to commence work in the yard first of all and to get as much of that work completed before daylight was lost.
[42] Mr Gimbert claimed that the shift was thereafter business as usual, with the Applicants “coming and going as normal.” He recalled that the tasks for that shift included moving a large number of heavy bolts (between 3-5kgs in weight), to which reference was made immediately above, and other various pieces of equipment which were in large quantities and were heavy in weight.
[43] This was because of the work orders arising from the shutdown of the surface mine. Once picked the various materials (bar heavy and odd shaped items) were located to an area in the yard or in the warehouse from which they would be picked up and distributed as required.
[44] Mr Gimbert himself did not go into the external yard on the shift of 10 March 2013. However, he did recall looking out at the yard at various times “and seeing all three of the Applicants working out there as normal.”
[45] But more particularly, Mr Gimbert also recalled seeing Mr Ager using the small electric forklift to deliver multiple cartons of PPE inside the warehouse where he (Mr Gimbert) was working.
[46] Mr Gimbert recalled speaking with Mr Ager about moving a volume of PPE to a delivery point some 300m away from the warehouse. Because there had been some civil works being completed on the road Mr Gimbert stated that Mr Ager had “decided to use the electric forklift on this occasion to better cover the ground.”
[47] Mr Gimbert was of the view that at the end of the night shift all the tasks that were required to be performed by the crew had been completed, and his handover notes so demonstrated. His handover notes record that PPE had been topped up (to which reference was made above) and that a grease pod and a detergent pod had been delivered to the workshop.
[48] Mr Gimbert recalled that he had asked Mr Graham to deliver the pods to the workshop, and was later informed by Mr Graham that he had done so. The detergent pod is 1000 litres and the grease pod is about the same size. The pods weigh approximately 1 tonne each. The workshop to which they were delivered is some 50m from the warehouse. Mr Gimbert stated that:
In my experience at the warehouse, it is highly unlikely that Mr Graham would have been able to complete this task without using lifting equipment of some description.
[49] Though it is not in his written statement (which is a matter about which I will comment below), Mr Gimbert gave further evidence-in-chief at the hearing that he had witnessed Mr Graham transporting by mechanical means the 1000 litre detergent tub in the course of the shift: an observation of significance in these proceedings, along with that of Mr Ager returning from delivering the PPE. I discuss these observations further below.
[50] On Monday 11 March 2013, Mr Gimbert contends that he mentioned to his crew during a meal following the shift that he had not seen any completed pre-start checks from the night before, that he was required to sign off on (as explained above).
[51] Mr Gimbert said the three crew members each looked at one another and informed him that none of them had done any pre-start checks.
[52] During the course of that conversation nobody explained to Mr Gimbert that while they had not completed the pre-starts, none of them in fact used any loading machinery on the shift that night before. Mr Gimbert claimed that any such context did not occur to him given that he considered it obvious that each of the Applicants would have used loading machinery during the shift.
[53] On Wednesday 13 March 2013, Mr Gimbert received an e-mail from Mr Flood, his immediate report, requesting that each of his crew including himself respond in writing to a number of questions regarding pre-starts on the night shift of 10 March 2013. That e-mail incorrectly cited the relevant shift as being the shift of Monday 11 March 2013 not the shift that commenced on Sunday 10 March 2013.
[54] Mr Flood’s e-mail consisted of four questions. The fourth question was:
Did you operate any equipment during the Monday night shift without a pre-start being completed?
[55] On the night of Wednesday 13 March 2013, Mr Gimbert claims he and his crew spoke about the questions that they had been asked. Mr Gimbert claimed:
They told me collectively that they were concerned that and ... Mr Flood’s questions would lead to discipline, and that they would incriminate themselves. They also told me they did not want to answer the questions until they were given more details about what might happen to them if they answer the questions unfavourably.
[56] Again, Mr Gimbert’s evidence was that no-one in the course of this conversation informed him that loading equipment was not used on the shift in question.
[57] Mr Gimbert stated that he had a further conversation with his crew at breakfast immediately prior to them leaving the mine on R&R. At that time the crew were required to provide their now overdue responses to Mr Flood’s questions. During breakfast the morning prior to their flight the crew discussed in Mr Gimbert’s company how they had answered the questions in Mr Flood’s e-mail to them. The crew informed Mr Gimbert they had all replied “No” to Mr Flood’s question regarding whether they had operated machinery on the shift. Mr Gimbert says that he “told them that he thought that this was not a good move, and made it clear to them that [he] could not help them if things went sour.”
[58] Mr Gimbert and his crew had a further discussion, so Mr Gimbert stated, at the airport later that morning. His crew discussed how their employer would be able to prove that they had used equipment on the shift. Mr Gimbert claimed he said words to the effect of “fellas, as a starting point the shift handover notes record that things have been delivered during the shift.”
Evidence of Mr Patrick Flood
[59] Mr Patrick Flood, as mentioned above, is the Superintendent, Warehouse and Inventory, for the Respondent. Mr Gimbert reports to Mr Flood, who in turn reports to Mr Courtney.
[60] Mr Flood had become aware of the failure to complete the pre-start checks the day after the shift, which was 11 March 2013, when the following day shift crew made him aware of the situation. Mr Flood met the crew in the crib room before their shift commenced on the evening of Monday 11 March 2013. I have mentioned this and subsequent interactions with Mr Flood above.
[61] Mr Flood recalled that upon him raising the issue Mr Ager had commented that it had not been Mr Gimbert’s fault that the pre-starts were not done and that it was the responsibility of the three storemen to do their job and they did not do it on that occasion. None of the Applicants at that time indicated to Mr Flood that they had not used loading equipment during the night shift in question.
[62] Mr Flood then commenced an investigatory process with the assistance of Ms Pollock of the Human Resources Department. To this end he sent an e-mail to the three Applicants and Mr Gimbert at the start of the shift on Wednesday 13 March 2013, in which he asked them four questions. I have already referred to this email above.
[63] The four questions, and other comments in the e-mail, were as follows:
1. Were you instructed not to complete pre-start checks at all from the [...] night shift?
2. Do you agree that it is a normal and regular expectation that all vehicles are to have pre-starts completed at the start of each shift?
3. Did you choose not to complete a pre-start and if so why?
4. Did you operate any equipment during the [...] without a pre-start being completed?
I need an e-mail response answering each of the questions above before the end of tonight’s shift.
[64] While there was something of a delay in responding to the questions (the explanation of which resided in Mr Gimbert’s evidence above) each of the Applicants responded in the same manner. In sequence, each Applicant responded to the questions as follows: No; Yes; No; No.
[65] Following receipt of the Applicants’ responses to the e-mail of 13 March 2013, Mr Flood sought confirmation as to whether or not machinery had been used during the shift. Mr Flood asked this because the responses to Question 4 took him by surprise, he said, given the nature of the work performed in the warehouse, the time of year, and that the handover notes for the shift recorded items having been moved.
[66] Mr Flood was also informed by Mr Gimbert as to his conversations with the three Applicants.
[67] The investigation, therefore, became not so much an investigation into whether or not the employees concerned had complied with the site safety requirements, but whether they had utilised any loading equipment on the shift of 10 March 2013, and whether they had been honest in their responses to Mr Flood’s questions to them.
[68] On 19 March 2013, Mr Flood (in the company of Ms Pollock from Human Resources) conducted an initial interview with the three Applicants. The Applicants were represented by the AWU.
[69] In essence, each of the Applicants maintained his prior position at the meeting.
[70] There was follow up correspondence directed to the Applicants, which restated the central allegations and informed the Applicants that they were stood down on full pay for the duration of the investigation.
[71] The Applicants were subsequently sent a list of 1SAP entries (a Goods Movement List) for the shift of 10 March 2013 that constituted the movement of materials that were too large or too heavy to move without the assistance of machinery.
[72] That correspondence was dated 22 March 2013, and it also set out more specific allegations in the context of their respective, prior admissions. In Mr Ager’s case, he was informed that there was a witness to him having been using the loading equipment on the shift.
[73] Mr Graham’s correspondence set out that he had admitted being involved in “a task surrounding grease pod and detergent delivery to workshop.” But he had gone on to say that he had not used equipment to carry out that task as he had only “issued the goods” and “the guys will come around and collect.”
[74] Each Applicant was asked to respond to the correspondence in writing by 27 March 2013.
[75] In response to their respective correspondence, all three Applicants asserted that the goods as highlighted on their respective Goods Movement List extracts had been picked the previous night or before (or - as the evidence came to be - at least any items requiring mechanical means of relocation had been so picked).
[76] This therefore gave the appearance of the materials highlighted in the Goods Movement List (other than smaller items not requiring mechanical means of lifting and re-positioning, the Applicants variously came to explain) as having been picked on the night shift of 10 March 2013 when in fact they had been picked on the shift prior to that. There is more to this claim which came to light in the cross-examination process when a large number of manually completed checklists were brought into evidence.
[77] The reason behind this claim was that as the 1SAP system was down on the prior shift no entries could be made in the system. This provided the storemen on that shift an opportunity to forward pick from the reservations list.
[78] Mr Graham had also alleged that employees and contractors from the Maintenance Department had come into the warehouse to pick up some heavy items and were therefore responsible for moving some of the goods. There is a more detailed discussion of this claim below. Mr Flood enquired of his counterpart superintendent from mobile maintenance, who found the proposition “laughable” that his crew would be involved in such activities (that is, performing the duties of the warehouse crew).
[79] In any event, this explanation left unresolved how the items that had been picked had been taken out of storage and moved to the lay down area or pickup point. Mr Graham came to argue that the grease pod had been picked, in effect, by the third party, and while he did not know about the 1000 litre detergent pod he had assumed it had been picked by someone because the inventory showed a pod was missing and he recorded it as having been picked as a consequence (even though he did not carry out the picking and could not identify when or by whom the detergent had been picked).
[80] The Respondent reached the view that the crew could not have completed a shift in the warehouse in the busy period before a shutdown without using loading equipment. The Respondent also concluded, taking account of various matters including the witness evidence, that the claims that the picks had been completed on the previous shift and left at the pick-up points (leaving the Applicants to only enter the data into the 1SAP system on the shift in question) lacked credibility.
[81] The Applicants were subsequently provided with show cause correspondence on 22 March 2013, setting out the range of allegations and its preliminary conclusion that the Respondent considered their actions to be misconduct.
[82] The AWU responded on behalf of the Applicants to the effect that they had provided as much detail as required in the circumstances and that no further written information would be forthcoming.
[83] Mr Courtney gave evidence that he convened a meeting with each of the Applicants on 23 April 2013. He states that he explained to each of the employees concerned that the purpose of the meeting was to finalise the investigation process and explained to each that the allegation against them was that they had failed to perform pre-start checks prior to operating loading machinery on the shift of Sunday 10 March 2013. It was made clear to them that an obligation fell upon them by way of the traffic management plan, referred to above, to complete such checks.
[84] It was also put to the employees by Mr Courtney that they had each lied during the investigation process regarding the use of machinery on that shift.
[85] Mr Courtney explained to the employees that if those allegations were substantiated they would face dismissal. Mr Courtney claimed that he gave each employee a final opportunity to provide further information to assist the Respondent in reaching its ultimate decision.
[86] Mr Ager was said to have argued that anyone could have used the forklift the night in question, and that the person who had purportedly witnessed him using the forklift had not been named in the investigation.
[87] Mr Ager was said to have suggested that paperwork had proven that he had followed the manual process during the1SAP outage and that the pick-slips would be difficult to locate.
[88] Mr Fleming was said to have continued to deny using any machinery on the night shift and added that he was concerned that his career reputation would be damaged.
[89] Mr Graham questioned the evidence against him and apparently indicated that he was disappointed in the process. Mr Graham also denied moving any goods around the yard over the course of the relevant shift. He said he painted the goods in the yard in pink and green to indicate to the relevant contractor that the goods should be moved. Mr Graham also was said to have commented that someone else has collected the grease pod and detergent during the shift, but he did not know who that was.
[90] Following these responses Mr Courtney read out then signed a letter of termination to each of the employees. A copy of the letter of termination was subsequently provided to each of the Applicants.
[91] This is the evidence in general from the Applicants and the Respondent. Their respective wider evidence arising from the examination process, and its implications for the applications, will be considered below.
s.387(a) whether a valid reason for the dismissal
Issues common to the Applicants
Consistency issue 1: Characterisation of workflow on Sunday 10 March 2013 shift
[92] The Applicants each found it difficult to reconcile why in their signed correspondence of 27 March 2013, directed to the Respondent in reply to its correspondence of 22 March 2013, they each described the shift as exhibiting “a high turnover of material”, whereas in their viva voce evidence in the proceedings they characterised the shift as comprising light duties (at least largely so).
[93] Mr Ager described the shift as providing an opportunity to wind down from the previous busy period, and stated that it had been designed by the crew for that purpose. The crew had “some very long smokos”, “a bit of yarn”, and carried out intermittent data entry into 1SAP. Mr Ager also described the shift as being “exceptionally quiet”. Under cross examination, Mr Ager conceded he had changed his view and agreed that he had contradicted himself or else referred to administrative work (when talking about the “high turnover of material”) on the Sunday night. He claimed under cross examination that “I’m not quite sure what I meant” in relation to the claim he made to his employer.
[94] Mr Fleming, at one time, described the shift as being “cruisey” and that there was no “high turnover of material.” Mr Fleming also claimed, when pressed under cross examination, that a high turnover of material referred to the administrative tasks on the Sunday night, or else to the entirety of the swing. But he also said, amongst other things, that he “was probably referring to [his] issues or whatever. I don’t know.”
[95] Mr Graham, at one time, said the shift was quiet, uneventful, traffic volume was low, and his crib breaks were uninterrupted. He later claimed he had been incorrect in making the statement, or else he may have been referring to the whole swing, not the Sunday night in question.
[96] The reason, on the balance of probability, that the shift was characterised by “a high turnover of material” in the correspondence of 27 March 2013 was because this circumstance was intended to contextualise the Applicants’ recollections of their individual actions on the shift of 10 March 2013 in relation to certain item movements. This is apparent from the correspondence. The high turnover of materials on the shift along (in the same sentence) with the stated “considerable period of time lapse since the completion of the tasks” was intended to give studied conditionality to the accuracy of the Applicants’ recollections about the circumstances of picks made and recorded on the shift of Sunday 10 March 2013. It was a claim, however, that sat uncomfortably with the Applicants’ wider and subsequent evidence in these proceedings, and brought into early question the reliability of their evidence.
[97] But while they sought to so characterise the workflow on the shift, the evidence of the Applicants’ was not always consistent as to how to characterise the actual workflow on the shift.
[98] Indeed, Mr Fleming and Mr Graham gave different descriptions of the workflow across the shift. Mr Graham said he was kept busy all night and worked steadily, and Mr Fleming said he was busy attending to his own duties throughout the shift including data entry. Neither appeared to give support to the claim that there was time to engage in the yarns and very long smoko breaks to which Mr Ager referred. Mr Gimbert recalled no such extended breaks. And according to Mr Graham and Mr Fleming, the Applicants only crossed paths intermittently.
[99] Mr Gimbert’s evidence was that there was still quite a bit of work to get through in advance of the pending shutdown and an overhang existed from the previous shift. The shift on Sunday 10 March 2013, on his evidence, was an ordinary one as a result.
[100] There were also differences in how the Applicants characterised their activities on the shift.
Consistency issue 2: Time spent in the yard at the start of the shift
[101] Mr Fleming gave evidence that he had worked with the crew at the commencement of the shift in the yard, marking liners for between 1-2 hours. Mr Ager said the same, in effect (“Probably an hour, hour and a bit”). Mr Graham said the crew marked liners in the yard for some 5 hours at least, or almost half the shift (leaving less time to participate in activities in the warehouse). These are very significant departures in the Applicants’ recollections and bring into question the reliability of their evidence. This is particularly so given that Mr Graham’s evidence was quite elaborate as to why the yard work the crew had carried on for such a lengthy period:
How long did it take you to mark the liners?---Probably until midnight, because it was pretty dark. I mean, we ran it for a while - - -
Five hours?---Yes, at least.
At least?---Yes. Well, there were issues. Lots of issues with it. 1
[102] The issues concerned reconciling duplicate orders, Mr Graham went on to claim.
[103] There were other inconsistencies in the Applicants’ own evidence, as well as between their evidence. Mr Graham gave evidence, on one hand, that Mr Gimbert had given him a direction to ensure the liners were painted and finalised. But on the other hand, Mr Graham also stated that Mr Gimbert had no understanding of what his crew’s activities were in the warehouse. The later claim served Mr Graham’s interests and did not conform readily to his other claim. It also did not sit well with Mr Gimbert’s own evidence about his detailed understanding of his crew’s activities, his own directions and the workflow for the shift.
[104] Equally, Mr Graham recalled how he spray painted liners for pick up in the yard that shift, which meant that he did not have to move any materials by mechanical means. But at another point in his evidence Mr Graham was unsure if he had used a spray paint that night at all.
Consistency issue 3: Date of signed and witnessed checklists
[105] One of the further issues the Applicants were required to address is why they had completed, signed and witnessed pick lists that were dated 10 March 2013. If they had not picked any materials why would they have signed off on their pick lists for the night of 10 March 2013?
[106] Of course, had they picked materials on the shift in question they would have very likely used loading equipment in the course of so doing. Thus, the issue was an important one in the proceedings.
[107] Mr Fleming argued at first that the pick lists were merely the carry-over, one way or another, from the physical acts of picking that occurred on the previous shift or else concerned liner checking which did not require (so he contended) the use of machinery.
[108] Various further explanations were proffered, but Mr Fleming was adamant, and perhaps even more so, on the first day of his evidence of the accuracy of his recollections:
MR FOLLETT: Can I take you now to number 9, more bolts?---Yes.
Item number 9?---Item number 9, yes.
Yes?---So have you got a similar thing with a corresponding pick lists?
I do indeed?---Yes, that's all going to be exactly what I just explained, so it's just - I'm getting this Latin, you guys must - it must be coming out of youse ad nauseam. Yes. This is the double-check of the liners, the task we were given to do on the night, so check it out. No, this is something else. No, there you go, awesome.
So this is another pick slip - - - ?---Yes.
- - - from the Sunday night?---Yes.
Signed by you?---Yes.
Witnessed by Jeremy?---Yes.
And on number 2 on that, bolts, 36?---Yes.
They're the 36 bolts that I want to suggest to you that you picked - - -?---Yes.
- - - on the - - -?---I usually do 18 in my left hand - - -
- - - Sunday night?--- - - - and then 18 in the right.
Yes. And you did that, you picked 36 of those on the Sunday night, didn't you?
---No, they were all picked before, in the blackout.
Why on earth - - -?---It's about checking the liners, mate.
Why on earth have you produced a hardcopy piece of paper Pick List for Reservation that you agreed with me earlier is used when you go out to collect items for an order?---Yes.
Why on earth have you done that on the night in question for these items in circumstances where you didn't do it?---Because it's all about checking the liners. And as you can see again, I've marked with the liners. Can you see I'm exuberant and I'm smiling and this is how you get when you know you're right and it feels good. It's the truth. It's just - it's satisfying. It's good. It's like I know - it's all coming back. 2
[109] Mr Fleming believed that all the picks dated 10 March 2013 were no more than spray painting liners in the yard (which were effectively picks as they would have been left in situ for the contractor to pick up, assuming they were all large or irregular sized items).
[110] Where a pick list so dated referred to items other than (heavy or irregular sized) liners that remained in situ (and did not require movement by mechanical means), Mr Fleming argued that there might be incorrect dating on those pick slips and/or else there had been double ups (of some kind) which required a form a re-checking with a new pick slip signed and witnessed on the Sunday 10 March 2013 shift. This was clearly a point of some difficulty in Mr Fleming’s evidence.
[111] However, whilst he maintained these explanations at considerable length when he had been shown a number of pick forms executed on 10 March 2013, Mr Fleming changed his explanation very significantly, indeed in effect totally, the following day.
[112] On the following day of the hearing, Mr Fleming argued that he had recalled overnight that he had not in fact had the picks signed off and witnessed and issued on the Sunday 10 March shift, but on the night they were actually physically picked, being the outage shift of 9 March 2013. That is, the fact the forms were completed and signed “10 March 2013” was because he had posted the picks after midnight on the 9 March 2013 shift (not because he had posted the picks on the subsequent night shift as he had previously contended at length). Presumably, this referred also to the liners, about which Mr Fleming had been so adamant the day prior.
[113] Putting aside other circumstantial difficulties with this latter explanation, it is very difficult to accept Mr Fleming’s reconsidered explanation, especially where his initial evidence was held in such an express state of fixed belief.
[114] Just because an Applicant’s evidence changes course, it does not follow that by the operation of some inexorable rule of evidence that the witness loses all credit. Mr Gimbert’s evidence, for example, developed substantially from the confines of his written statement too, I should add. I comment on this below to the effect of the development not causing me to dismiss his (Mr Gimbert’s) claims.
[115] But the development in Mr Fleming’s evidence was to a profoundly different effect, and it shifted from a previous position established under cross examination. Mr Gimbert’s evidence was proffered as further evidence-in-chief and had not been subject to cross examination. There are other contextual differences between the witnesses as well, which I canvass elsewhere in my discussion of the evidence.
[116] Mr Ager’s evidence about why the pick slips were signed and dated 10 March 2013 did not correlate with Mr Fleming’s claims at all. Mr Ager claimed that the fact that pick slips were signed on the night of 10 March 2013 resulted from the chaotic conditions of the warehouse in which the date of picks and the signing and verification of picks took place at widely variable times, and this would have led to recounting (on the Sunday 10 March 2013 shift) but no picking as such:
It's been picked. We'll find it tonight, and enter it - - -"?---There was a huge amount of change going on in the warehouse and the way things were organised. This whole procedure, where it had to be countersigned and signed, was something that was a work in progress. It was confusion; confusion reigned over there. This would've been a printout that was obviously done on that night but it had been picked on a previous printout. 3
[117] This was most certainly not Mr Fleming’s initial (first day of proceedings) or his amended (second day of proceedings) view as to why the picks were signed and dated “10 March 2013”. It was not Mr Graham’s view (which - so far as I could determine it - accorded more so with Mr Fleming’s amended view). It was not Mr Gimbert’s view, who claimed the pick slips were completed when the picks were made and there was no requirement for recounting. Mr Flood knew of no such practice, either.
[118] As I have alluded to above, Mr Graham’s evidence for the most part was that he signed/witnessed the pick slips on the morning (after midnight) of the 9 March shift, and was confused at points by his own testimony:
MR FOLLETT: So do I understand your evidence to be that you date these things on the actual calendar date that you pick them?---Yes, pretty much. Well, to be honest with you, we get a lot of these. We just went through it and went, "Sh, sh, sh," whatever we did as in we weren't doing them at the time. We kind of checked them, blah blah blah, and just thought (indistinct)
Yes?---You know when there's a stack. You know when you get a stack of forms and you have got to sign them, and blah blah blah, and it's kind of a bit like that.
Right?---So not particularly at the time of when we did it. [My emphasis]. 4
[119] Ultimately, Mr Graham’s evidence left open whether there was a necessary alignment between the date of the administrative tasks related to picking (the signing and witnessing of the pick forms) with the physical act of picking itself. Equally, Mr Graham may have been referring to the time of the day not the date of the day on which the pick took place, at least in the latter part of his evidence as cited.
[120] I find the Applicants’ evidence taken together to be unpersuasive because of the confusion which has surrounded their claims (especially in respect of Mr Ager and Mr Fleming) about how they came to sign and/or witness picks dated 10 March 2013, but never pick anything on that date so far as it was Sunday 10 March 2013. I find this particularly concerning as to why forms signed by and witnessed by the members of the one crew on a particular date would be the cause of confusion about the circumstances in which they were executing those (pick) forms relative to the act of picking itself.
[121] On the balance of probability, the confusion in and inconsistencies between the Applicants’ evidence (noting they were all members of the one crew) suggests strongly that that evidence was contrived - albeit it poorly so - to accommodate a particular impression; that being that no picking was done on Sunday 10 March 2013, and/or even where pick forms had been signed and witnessed for that date, they were actually signed on the previous night’s shift (after midnight).
[122] Further issues about the Applicants’ evidence require consideration. But this needs to be carried out through the prism of Mr Gimbert’s evidence, which I discuss below.
Implications of Mr Gimbert’s evidence for the Applicants
[123] Mr Gimbert’s evidence is of critical importance in numerous respects for these proceedings.
[124] I have had the benefit of hearing Mr Gimbert’s evidence.
[125] Mr Gimbert’s evidence generally was given in a dour and constrained matter. He seemed by nature to be disinclined to be effusive, or prone to over-statement (notwithstanding a somewhat contrary claim in closing submissions that Mr Gimbert at one point demonstrated anxiety under cross examination - a point with which I could hardly agree).
[126] In my view there is low probability that Mr Gimbert would have contrived his evidence in such a complex, elaborate manner as the Applicants’ evidence requires me to find. Mr Gimbert had no motivation to do so, and none was suggested. This was not a case in which one supervisor made a single claim in conflict with his crew. Here, Mr Gimbert has set out a very wide set of interactions and observations over a number of days. His deception would have been required to envelop his employer as well.
[127] Again, Mr Gimbert had no reason whatsoever to embark upon the creation of such a complex fabrication of his evidence.
[128] Mr Gimbert bore his crew members no ill will. Indeed, Mr Ager was said to have commented to Mr Flood when the safety issue had first been raised on 11 March 2013 that Mr Gimbert had not been responsible for any omission. Clearly, there was no enmity between Mr Gimbert and Mr Ager. And neither of the other Applicants suggested any ulterior motive either, or insinuated any history of antagonism (between their supervisor and them).
[129] Nor is Mr Gimbert’s evidence targeted at the three crew members in some exaggerated way. Mr Gimbert has no direct evidence about Mr Fleming’s use of the warehouse machinery at all. And where Mr Gimbert has direct observations to make about the other two Applicants, the observations comprise only two incidental points of contact over the course of a 12 hour shift. In short, his evidence was not overcooked, as it were.
[130] Mr Gimbert’s handover notes also record activities which came into contest, such as regarding the stock reversals and the delivery of the 1000 litre detergent pod, amongst other matters. Mr Gimbert’s handover notes could not reasonably have been fabricated in advance.
[131] To this I add that Mr Gimbert could not have been said to have been acting out of fear for his own employment security, either. Mr Gimbert had already offered to resign his position for reason of his complicity in the safety breach (but this had been refused and he had been given a final warning). Mr Gimbert therefore was not seeking to defend his position or to secure an advantage.
[132] It is, I think, virtually inconceivable in the circumstances (bar perhaps Mr Gimbert suffering some undisclosed pathological condition or that he had fomented a conspiracy with Mr Flood, when there was no reason for either of them to conspire about anyone or anything) that he would set out to contrive such a suite of evidence as he has to the detriment of his crew, and in the course of so doing mislead his employer so dramatically.
[133] I make some further comments about Mr Gimbert’s evidence below in respect of the manner in which his evidence-in-chief developed in an important respect between his witness statement and the hearing. This matter concerns his direct observation of Mr Graham having used loading machinery on the shift of 10 March 2013.
Discussions between Mr Gimbert and Applicants
[134] Mr Gimbert’s evidence was that he had two meetings with the three Applicants on the last day of the swing. He met with them prior to leaving site, on which occasion they discussed the common response to Mr Flood’s questions, and then they continued the conversation at the Townsville airport. I have set these matters out earlier. Mr Gimbert’s evidence was that he effectively warned the Applicants across these two occasions (if not on the day prior) that the denial to Mr Flood that they had utilised machinery on the shift would put them at risk given the evidence to the contrary. That was the gist of the exchanges that occurred.
[135] The Applicants variously deny seeing, meeting or speaking with Mr Gimbert on the last day of the swing, and deny any conversations of the kind Mr Gimbert alleges he had with them. But having heard the evidence, I cannot dismiss Mr Gimbert’s claims. As I said above, I found him to be an understated witness who had no discernible ulterior motive and (given my wider observations about the Applicants’ evidence) I prefer his claims to those of the Applicants.
[136] This was not a case in which the witnesses went out of their way to suggest that Mr Gimbert had prior knowledge of his crew’s responses to Mr Flood’s email enquiry of them, such as by Mr Gimbert asserting knowledge of the facts of the email before Mr Flood had mentioned the responses to Mr Gimbert. In short, the witnesses’ evidence about these matters emerged naturally, and was credible for that reason, amongst others as mentioned.
[137] Mr Gimbert also possessed particularly detailed recollections of the breakfast conversation and who (amongst his crew) was in attendance and at what point they arrived, as well as the content of the conversation (which concerned Mr Flood’s email).
[138] And what of the Applicants’ evidence?
[139] When asked if he had discussions with Mr Gimbert at breakfast, Mr Ager replied:
We did not see Mr Gimbert at breakfast. 5
[140] But Mr Graham denies the fact that Mr Ager had breakfast that morning:
You thought the best chance of avoiding being sacked was to lie about not using the forklifts?---No, I did not. No, I did not.
[...]
And that's why at breakfast on 14 March before you leave you have a conversation with the other two guys to make sure that your answers were consistent, correct?---No, not correct. Incorrect. Because the other two didn't have breakfast. 6
[141] Mr Graham seems to have the recollection that he had breakfast, but the other two did not.
[142] Mr Fleming seemed to suggest he did not have breakfast, so could not have seen Mr Gimbert.
[143] Against this evidentiary backdrop, I prefer the narrative presented by Mr Gimbert.
[144] My view about Mr Gimbert’s evidence was buttressed by his recollections of the detailed location and content of the conversation between his crew and himself at Townsville airport. The richness of this evidence (the precise physical setting and the context) cannot be set aside given my observations about the witness above, and the unlikelihood that he has fabricated his evidence.
[145] These findings all serve to strengthen to some added measure the further inferential finding that there were indeed interactions between the Applicants and Mr Gimbert on the day they left the mine site before R&R, contrary to the claims made by the Applicants themselves. These were interactions about matters that the Applicants have sought, it follows, to suppress as matters of evidence in these proceedings. These matters comprise the content of the conversations as Mr Gimbert has set them out to be.
Duties performed in the yard
[146] There was also a difference between Mr Gimbert’s evidence and that of the witnesses as to the range of activities carried out in the yard at the start of the shift, and how the Applicants came to be in the yard. But the Applicants were also inconsistent between one another as to how they came to be in the yard at all (by Mr Gimbert’s direction or by collective consensus) and whether they were doing shutdown work, or checking and marking liners or marking returned stock. There was no actual explanation as to why the work they say they carried out in the yard had to be completed in the daylight hours in any event.
[147] The Applicants claimed generally that tasks were carried out (largely liner picking and marking and cancelling orders by remarking) and this required no use of machinery, and that any picks issued on Sunday 10 March 2013 in respect of materials in the yard resulted from picks completed on the earlier shift.
[148] Mr Gimbert gave evidence that as shift supervisor he had detailed knowledge of what tasks had to be completed on the shift. It was in that context that he directed the three employees to pick various materials manually from the yard whilst there was still daylight available. He did this, he said, as there were various items, including smaller scale items and bolts that needed to be picked and moved to the muster point and it was important to complete this task in the daylight to avoid hand injuries.
[149] The mill bolts in particular, as picked in 1SAP on the shift in question, were about 100 mm long and weighed several kilograms each and had to be manually sorted (work which it appears Mr Gimbert had assumed the earlier day shift would have carried out). These were items that had to be taken to the muster point by mechanised means, and thereafter issued.
[150] It was in respect of these movements (and others) that Mr Gimbert would have heard the movements of the forklifts that evening, as he evidenced, and for the reasons he evidenced (the reverse-in parking bay for the forklifts being adjacent to the main door).
[151] The Applicants have denied all such activities, stating (as I have mentioned above) that where such items were picked they were picked on the previous night and only issued on the night of Sunday 10 March 2013.
[152] It may well be the case that the Applicants picked a quantity of materials on the preceding shift when the 1SAP outage occurred, and issued the items the following shift when 1SAP was again operational. But this did not mean that no further picks were done on the 10 March 2013 shift.
[153] Again, for the reasons given, I prefer Mr Gimbert’s evidence in all these regards. His narrative was logical and consistent. This contrasted with the Applicants’ claims. The Applicants had all been directed to carry out various duties in the yard, which included picking and relocating mill bolts and other items, including liners (of manageable weight and size and shape) and which were issued subsequently in the 1SAP system. They were duties (at least in respect of the manual selection heavy mill bolts) that needed to be completed in the daylight hours to avoid hand injuries. This is why the crew came to be in the yard at that time, and they did so at Mr Gimbert’s direction.
[154] To have carried out these duties to full effect, the Applicants must reasonably be taken to have used the mechanical means at their disposal to relocate the items to the designated muster point (in respect of which Mr Gimbert says he heard operating as he would on any ordinary evening). And it is to evade this implication that has caused the Applicants to contrive different accounts of what and why and for how long they were carrying out duties in the yard.
Direct observations
[155] To this discussion I add the direct observations of Mr Ager and Mr Graham being in charge of mechanical loading machinery. I have set out these observations above.
[156] The observation of Mr Ager is contextualised within a discussion about the unusual configuration of the forklift and the trolley in a circumstance where there are civil works between the warehouse and the delivery point. The evidence does not have the hallmarks of concoction, such as being abstracted and lacking context. For these and the further reasons I have given above about Mr Gimbert’s evidence, I have no reason to doubt that Mr Gimbert’s recounting of this conversation and his observations of Mr Ager’s activity is genuine.
[157] But what of Mr Gimbert’s observation of Mr Graham using loading equipment to transport a 1000 litre pod of detergent? As I mentioned earlier, it was an observation that entered the evidence by way of evidence-in-chief led viva voce, and not by way of the written statement, as it might usually.
[158] Ordinarily, I would approach such evidence, which is markedly developed from the written statement, with great caution. This is because it is a serious matter to omit through mere oversight from a written statement such a pertinent physical observation such as this. But here I think there is sound reason again to accept Mr Gimbert’s evidence as being credible. There are three reasons for this.
[159] The first reason (in two parts) is that I have generally found Mr Gimbert to be reliable witness who is not prone to exaggeration, and was without any discernible motive to act against the interests of the Applicants or his crew. I have commented on this earlier.
[160] Secondly, Mr Gimbert’s evidence about having witnessed certain of the Applicants (Mr Graham and Mr Ager) using the local loading equipment has an air of authenticity for reason that he made no effort in his evidence to extend his observations to Mr Fleming (only to Mr Graham), and the evidence in respect of both the observations of Mr Graham and Mr Ager is incidental to the night’s activities, as it might ordinarily be. That is the evidence in relation to Mr Graham, even if it was late arriving, did not have the hallmarks of concoction.
[161] Thirdly, as I discuss below, Mr Graham’s own evidence about how he came to be satisfied that the 1000 litre detergent pod had been picked and moved to the appropriate muster point (which caused him to enter the pick into 1SAP) was wholly lacking in credibility.
[162] Indeed, had I not been in receipt of Mr Gimbert’s direct evidence about having observed Mr Graham using a loading machine, on the balance of probability I would nonetheless have found inferentially that Mr Graham (on his evidence alone as I discuss it) would have had to have used machinery that night to fulfil the pick requirement for the 1000 litre detergent tub regardless.
[163] For these reasons together, or on their own, I consider that Mr Gimbert is being honest in his recollection (despite the manner of its introduction into the evidence), and that on the balance of probability Mr Graham used machinery to pick and relocate the 1000 litre detergent pod on the shift in question.
Stocktaking and Reversing Reservations
[164] In the course of each swing, the crew are asked to complete some 500 lines of stocktake. This requires travelling around the warehouse, locating the relevant material and counting off the items on hand to reconcile with the inventory. Because material is stored throughout the warehouse at varying heights on the shelving, loading machinery, such as a crown lift, is commonly used to count the stock on hand.
[165] The Applicant’s all argued that Mr Gimbert carried out all the stocktake on the night in question. They each claimed that they did not do any stocktake. The 1SAP records indicate otherwise.
[166] Mr Gimbert’s evidence was that he carried out no stocktaking whatsoever on the Sunday 10 March 2013 shift.
[167] Mr Gimbert gave evidence, that as mentioned in his handover notes, he had ensured that there had been corrections or reversals to some 1SAP reservations arising from a systems “glitch”.
[168] Mr Gimbert recalls the Applicants being “peeved” at the need to identify certain items that had been picked and to locate the same and return them to their original locations in the warehouse.
[169] Mr Fleming for his part rejected any suggestion he was involved in stock reversals, which carried the implication that loading machinery would have been utilised to this effect:
You will recall won't you that one of the things that happened on the Sunday night shift is that you would pre-pick some orders, certainly pre-pick some orders on the Saturday night and you'd assemble them all?---M'm.
Then when you came to enter them into 1SAP those orders, because you sit at the computer and you bring up the reservation and you can see the reservation, and you can see that some of the items you'd pre-picked and you went to enter on the Sunday night were no longer on the order, correct?---I'm not sure, I think there were some like that, but yes.
What you then had to do was go and return all the items that have been deleted from these lists back to where you picked them from originally, correct?---So you're insinuating I used the fork lift to do that?
Absolutely you did?---No I did not, I did not use the machine on that night.
You went and returned a range of goods that have been pre-picked the night before because of the 1SAP glitch on the Sunday night, correct?---No, it isn't.
You and your colleagues complained to Mr Gimbert about it, that you wasted all this time on the Saturday night picking these items that you then had to spend time returning on the Sunday night, correct?---No, I didn't return anything, I didn't use any machines, I told you that.
This Mr Gimbert made a note of in the shift hand over. He said, "Shut reservations, worked through, problems with items deleted from work orders and still showing up in the reservations."?---Right.
That's a reference to him saying the three guys complained to me because they'd picked all these items, some of those items have been deleted from the reservation and they have to go and return them all on the Sunday night, correct?---No, didn't return anything.
So if Mr Gimbert gives that evidence he will be not telling the truth?---I don't know what he's going to say, what his recollection is. Asked him if he's witnessed me using a fork lift. 7
[170] Mr Fleming was indeed alert to the implication of his involvement in stocktaking reversal.
[171] I am asked to infer from such circumstances as explained by Mr Gimbert that these were activities that required some measure of usage of mechanised loading or else a mechanised means of conducting some stocktaking activities. I am persuaded by Mr Gimbert’s evidence that stock reversals took place over the course of the shift. He was unmoved under cross examination and there is no reason to believe (and indeed it is difficult to even imagine) that he fabricated his shift hand-over notes in advance of the disciplinary issues over safety breaches ever emerging as an issue.
[172] Some stocktake and/or reversal activities might have been undertaken on foot and through eye-level observations, but it might not be reasonable in the context of the type of materials in the warehouse and its layout (over such an extensive area as was evidenced) to assume all such activities did not demand the use of machinery.
[173] There is something to be said about this suggestion in the context of Mr Gimbert’s wider evidence about his having heard machinery active over the course of what he described as an ordinary shift (contrary to the Applicants’ description of the workflow on the shift as being abnormally quiet - other than in respect of their written claims about turnover of materials on the shift as made on 27 March 2013).
[174] I am satisfied on the balance of probability the Applicants carried out stock reversals on the shift in question as Mr Gimbert maintained. The evidence does not give examples of what pick items were reversed and whether they reasonably required the use of machinery to re-position in the warehouse.
[175] Notwithstanding this, what is particularly troubling in the Applicants’ evidence is that they sought to conceal this activity on the night in question. Of course, the inferential issue that is begging is why they would seek to so conceal the range of their activities, other than that they were seeking to conceal the use of machinery. No other reasonable explanation emerges in the evidence, when taken as a whole.
Mr Ager’s Evidence
[176] Mr Ager’s evidence under examination proved problematic. He had maintained in his written response of 27 March 2013 to the Respondent (by way of the show cause letter) that he had picked no materials on the Sunday night shift other than some lightweight PPE (which he used a trolley to deliver). He otherwise maintained in these proceedings that he picked no items on the Sunday night shift.
[177] But under further and subsequent questioning, Mr Ager conceded that he had in fact picked 12 large oxygen cylinders (weighing 80kgs each and being some 180cms in height) at Mr Gimbert’s direction. This was recorded on 1SAP. He recalled this (as a dim memory as he described it) six months later, when pressed, but not at the time of the incident.
[178] But Mr Ager, despite making this concession, and despite his poor level of retention in relation to the circumstances, nonetheless recalled that a partly full pallet of gas bottles had been left parked in the warehouse by a previous crew, and that this allowed him to manually roll a couple of gas cylinders (some 180cms in height and weighing 80kgs each) onto the skid without the use of a loading machine (hence completing the pick requirement).
[179] Moreover, he did not use a loading machine to deliver the skid to the muster point, he simply left the skid in the warehouse.
[180] Mr Ager’s evidence in this regard was far from persuasive. I so conclude for a number of reasons.
[181] Firstly, the evidence contradicted Mr Ager’s original and immediately prior accounts of how the gas bottles were picked, and its ad hoc emergence in the evidence (under cross examination) strongly suggested fabrication in the manner in which he managed the pick involving such heavy items without use of machinery. This is particularly so as Mr Ager, in actuality, postulated a number of scenarios in these proceedings as to how the gas cylinders came to be picked and on what date. These were simply discarded subsequently.
[182] Secondly, the evidence was further undermined by Mr Gimbert’s recollection that he had worked near the gas cages that night and that there was no pick of 12 oxygen bottles left on the warehouse floor that night, and he would have noticed if there was. The pick had been located to the muster area, and obviously by way of mechanical means. This was why Mr Gimbert had so noted the pick having been completed in his shift handover notes.
[183] Thirdly, Mr Ager’s testimony requires me to accept that he simply came across by serendipity a skid of gas cylinders (left by a previous shift) of such a number that merely required topping up to meet the order, which could be managed by manual (and not mechanical) means, and which was then left where it was.
[184] The entirety of the process as it was recounted to me appears to be at odds with the dutiful processes for inventory management. It also relied far too greatly on happenstance and mere coincidence, favouring a particular outcome. The evidence as led sat uncomfortably with Mr Gimbert’s direct observations that the pick movement had been completed (as mentioned above).
[185] Similar issues arise in respect of Mr Gimbert’s recollection of meeting Mr Ager when Mr Ager had an empty trolley on the forks of the electric forklift. Mr Gimbert said he asked why the trolley was on the forks and Mr Ager explained that he had delivered the PPE, which was required to be delivered over the shift, using the forklift because the usual route he used had been blocked by civil works.
[186] Mr Ager argued no such conversation took place and he never used any loading equipment that night, and delivered the PPE by trolley by pushing the trolley through the car park, an unconventional and unsafe route. I have made related findings about Mr Gimbert’s observations in relation to this matter earlier.
[187] Mr Gimbert’s evidence is to be preferred in this respect and generally in relation to Mr Ager’s use of loading machinery over the shift.
Mr Graham’s Evidence
[188] As I have discussed above, Mr Graham had no argument with the fact that he was directed by Mr Gimbert to pick and deliver the detergent (along with a barrel or tub of grease).
[189] But he had no explanation as to who moved the 1000 litre tub - where, or when, or how, or who had access to the warehouse (and not just a muster point) or the yard or to the rear of the sheds through the locked gates to carry out this task. I say this on the premise that the warehouse gates are locked and employees on the mine site need to seek entry from the crew:
Just in relation to access to the warehouse generally, how is it that external employees or contractors come to have access to the warehouse?---They don't have; they have to call on the two-way or phone to be let in through the doors or have the gates unlocked. The place is - the gates are locked all the time and access through the office and the shed is by Cardex only. 8
[190] Mr Fleming gave some limited evidence that he had seen an unidentified person on a forklift that night. But that evidence did not travel very far, was not reconciled with the limitations on entry referred to immediately above, and was left unrelated to Mr Graham’s pick.
[191] Mr Graham claimed he recorded the item as having been picked and delivered owing to his observation of the stock level. This is an unsatisfactory explanation. It is not a warehouse practice and is inconsistent with the dutiful and diligent approach to warehouse responsibilities elsewhere asserted in the evidence. Even further to this, Mr Gimbert’s evidence was that Mr Graham could not have reached the conclusion he did about the stock levels until after such time as he had issued the pick.
[192] It is difficult to see how such an informal approach could accord with the expectation for inventory control demanded on such logistics operations, and the Cannington Mine warehouse in particular. Mr Flood gave uncontested evidence in this regard to the following effect:
Historically Cannington inventory was a bit below standard to the point that in early February we conducted a 100 per cent stocktake and that was the first week of February, thereabouts, and ever since then we have maintained the highest level of accuracy within BHP globally at 98 per cent plus.
So since early February 2013, the BHP Cannington inventory has been the highest level of accuracy in the entire global BHP Billiton?---Globally, yes 9
[193] Mr Graham’s evidence was wholly unconvincing.
[194] It is a reasonable inference to be drawn from all the circumstances that Mr Graham himself had used a mechanical means of picking and delivering the 1000 litre detergent tub.
[195] This is a finding that provides a further reason for me to accept Mr Gimbert’s evidence about Mr Graham’s use of machinery to move the tub, which I have discussed above.
[196] I have also made reference to other aspects of Mr Graham’s evidence in the course of this decision.
Meetings with Mr Gimbert
[197] All three Applicants deny having any discussions which included Mr Gimbert either on the morning of their departure from the site or at the Townsville airport.
[198] The gist of those meetings is that the Applicants all understood the implication of their denial of having used machinery on the Sunday night shift and the difficulties they faced in sustaining that position against the reality of their activities over the course of the shift.
[199] I have commented earlier on Mr Gimbert as a witness. He had a sound and developed recollection of the meetings with his three work colleagues, including on the last day of the swing. I do not doubt his evidence, for reasons I have given.
Conclusion in relation to valid reason
[200] This is a matter that allows for finding based on some direct evidence, but also for a range of inferential findings drawing on surrounding relevant facts and circumstances. The matter is made more complicated in so far as the three applications have had to be heard at one time. Because of the interactive nature of the evidence, care needs to be taken to ensure that one Applicant’s case is not compromised by deficiencies in the case of another, or of others.
[201] Notwithstanding this cautionary note, taking all the circumstances as I have discussed together, I am satisfied that on the balance of probability the Applicants have sought both individually and together to conceal and/or distort information about the actual scope of their activities on the shift of Sunday 10 March 2013 given to their employer in the course of its investigation into a safety-related incident.
[202] This conduct grounds a finding that the Respondent had a valid reason for the dismissal of each of the three Applicants.
[203] The evidence traversed in these proceedings travels beyond that which was before either the Applicants or the Respondent at the time of the dismissals. But that evidence serves only to reinforce the Respondent’s identification of the valid reason for the dismissal. In such further matters, for example, as their interactions with Mr Gimbert following the shift, the Applicants have all resorted to dissembling.
s.387(b) whether notified of reason for dismissal
[204] The Applicants were provided with a show cause letter that enabled them to appreciate in advance the pending reasons for their dismissal. The correspondence of 21 March 2013 and 22 March 2013 (this being the show cause letter) is to this effect.
[205] As I have said above, there are some matters that have arisen in the evidence in these proceedings (which underpinned the reasons for the dismissals) which were not put to the Applicants at the time of the dismissal. This material has arisen subsequently. I will comment on this below.
s.387(c) whether provided opportunity to respond to reason for dismissal
[206] The Applicants were each provided with an opportunity to respond to the allegations made against them, and they each availed themselves of that opportunity to the extent they wished or were advised. Each Applicant responded to the show cause letter. Express issue were put to them at the interview as well, as recorded in the exhibits to Mr Flood’s statement.
[207] It is the case that the Applicants have all had to respond to a range of materials and issues and claims in the course of these proceedings that were not particularised at the time of the show cause letter. But while this may be the case, their fundamental positions would have been unlikely to have changed from what they were at the time; they have all and each consistently and steadfastly rejected any proposition that they used any machinery on the shift 10 March 2013, and their evidence has been contrived to support that claim.
s.387(d) unreasonable refusal of support person
[208] The Applicants were each represented by the AWU throughout the process and discussions regarding the termination of their employment. It was not suggested that the Respondent unreasonably refused the Applicants the attendance of a support person during this process and the discussions leading up to the dismissal.
[209] There was argument that the Respondent unreasonably demanded (through Mr Flood’s email of 13 March 2013) that the Applicants provide information about their claims in relation to the use of machinery before they left site on R&R, and that the Applicants did not in the circumstances have access to a representative for that purpose. This is a matter germane to s.387(h) of the Act below, in so far as it may have a bearing on the harshness of the procedures leading to the dismissals.
[210] But the request, as it was, does not appear to me to have placed the Applicants in an invidious position, in which their interests were compromised absent representation. The email is set out above. It sought basic factual information (or at least information about the Applicants’ basic position in respect of certain key matters) relevant to the investigation. I did not discern any harshness being done to the three Applicants in so far as the Respondent sought to inform itself in this way.
[211] Beyond the point of the request by email of 13 March 2013, throughout the remainder of the investigation and the dismissal process, the Applicants had access to their union representative.
s.387(e) unsatisfactory performance
[212] These dismissals did not relate to the unsatisfactory performance of the Applicants. It is not a relevant factor to which I can have regard for the purposes of the determination at hand.
s.387(f) size of the employer’s establishment or undertaking
[213] There is no relevant submission that the size of the Respondent’s establishment in some manner affected the procedures leading to the dismissal, other than in so far as the Respondent had at its disposal - because of its size - resources that enabled it to readily comply with the expected statutory procedures in managing a dismissal.
s.387(g) availability of human resource specialists
[214] My view in regard to the availability of human resource specialists is as set out above in relation to s.387(f) of the Act. In any event, the Respondent had access to HR resources and utilised those in effecting the dismissals.
s387(h) other matters
[215] None of the Applicants had been long serving employees in a traditional sense, but they at least had generally been well settled at the workplace until the incident(s) set out above arose.
[216] The dismissals are likely to have caused financial stress to some degree and measure, and other inconveniences and anxieties. But seldom does a dismissal not produce such results.
[217] The Applicants seemed to allege that there was some harshness in the procedures utilised by the Respondent in seeking that they provide a concrete answer to four key questions prior to embarking on R&R. These questions are set out above. The Applicants appear to be of the view that they were “harassed” in some way to provide their replies and did not have access to representation at that time, to counsel them in their responses. I have discussed this above to some degree.
[218] The exigencies of the roster pattern certainly did alter the dynamics of the discussion or interview process. Ordinarily, there would have been available to the employees a representative at this stage, had they so desired. But equally so, the questions were not ornate or ambiguous. They required only “yes” and “no” answers.
[219] In all other respects the Applicants were represented by their AWU official. As I have found earlier, there does not appear to be any harshness or otherwise arising from these particular circumstances, noting too that the Applicants were represented over the course of the subsequent investigatory and show cause process and they were hardly denied opportunities to put their case in respect of particularised claims.
Conclusion
[220] On the weight of the evidence before me I am strongly persuaded (on the balance of probability) the three Applicants, together as a group and as individuals, concealed information about the use of available warehouse machinery and were not otherwise frank or candid with their employer during the course of an inquiry into alleged breaches of safety protocols.
[221] When I consider the various streams of evidence above (both direct and inferential), together they demonstrate to me with sufficiently high probability that the Applicants have fabricated in important parts their respective accounts of their conduct on the night of 10 March 2013, and in respect of their subsequent interactions with their Supervisor. They did so to convey an impression that they did not use machinery (as individuals or as a crew) over the course of their shift, so as to avoid potential disciplinary action.
[222] By so doing the Applicants acted dishonestly in the course of an investigation into an alleged safety breach.
[223] It is this conduct that founds the valid reason for the dismissal, and the substantive misconduct.
[224] The Applicants set about deliberately deceiving their employer in relation to its investigation into their breach of safety requirements on 10 March 2013.
[225] I note that Mr Fleming was not observed using machinery on the night of the shift, a point he pressed. He alone is caught, as it were, by my inferential findings exclusively. His evidence has been contrived (for example, in respect of his involvement in discussions with Mr Gimbert post the shift of 10 March 2013, and otherwise) to achieve the same, common end as that of Mr Graham and Mr Ager. He too has acted to deceive his employer.
[226] This, in all, is misconduct of a serious kind. The decision on the part of each of the Applicants was not spontaneous. Each of the Applicants had the opportunity to ruminate over their position and the relevant circumstances and adopted a position in relation to the Respondent’s investigation, and the enquiries made of them in the course of that investigation. They were untruthful on several occasions.
[227] The choice by the Applicants to deceive their employer brought into serious question the trust and confidence with which their employer could vest in them in the future generally, and particularly so in respect of workplace safety issues.
[228] The Respondent reached the view that it could have no such trust and confidence in the three employees. I agree. The employees deliberated and then set about deceiving their employer as it sought to make enquiries into why mandatory safety checks had not been carried out. Their evidence in these proceedings has maintained the same purpose.
[229] There is no reason for the employer to believe the employees would conduct themselves in any different way in the future in important issues of safety, or generally.
[230] The applications (in U2013/1551, U2013/1552, and U2013/1553) made under s.394 of the Act by each of the Applicants are dismissed as a consequence of my findings.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr T. McKernan, AWU, for the Applicants
Mr M. Follett, of Counsel, for the Respondent
Hearing details:
Townsville
2013
11, 12, 13 September
Brisbane
2013
14 October
1 Transcript of proceedings dated 12 September 2013, at PNS2442 - 2444.
2 Transcript of proceedings dated 11 September 2013, at PNS1640 - 1655.
3 Transcript of proceedings dated 11 September 2013, at PN914.
4 Transcript of proceedings dated 12 September 2013, at PNS2814 - 2816.
5 Transcript of proceedings dated 11 September 2013, at PN96.
6 Transcript of proceedings dated 12 September 2013, at PNS2556 - 2558.
7 Transcript of proceedings dated 12 September 2013, at PNS1897 - 1905.
8 Transcript of proceedings dated 13 September 2013, at PN3466.
9 Transcript of proceedings dated 12 September 2013, at PNS3056 - 3057.
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