Mr Lee Thorpe v Coal & Allied Operations Pty Ltd T/A Hunter Valley Operations
[2012] FWA 6279
•20 SEPTEMBER 2012
[2012] FWA 6279 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Lee Thorpe
v
Coal & Allied Operations Pty Ltd T/A Hunter Valley Operations
(U2011/1700)
COMMISSIONER MACDONALD | SYDNEY, 20 SEPTEMBER 2012 |
Application for unfair dismissal - Applicant and five other employees stood down - allegations of harassment and intimidation by Reynolds - first investigation interview - second lot of allegations of harassment and intimidation by Turner - second investigation interview - show cause letter issued after second investigation interview - summary dismissal next day - issues of procedural and substantive fairness - credit of certain witnesses - onus and standard of proof for summary dismissal - allegations not made out against applicant - unfair dismissal - orders for reinstatement, lost remuneration and continuity of service.
[1] This Decision arises from an application by Mr Lee Thorpe (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Coal & Allied Operations Pty Ltd t/a Hunter Valley Operations (the Employer/the Respondent).
[2] The unfair dismissal application was filed on 19 August 2011.
[3] The Employer’s response to the unfair dismissal application was filed on 12 September 2011.
[4] The unfair dismissal application was listed for conciliation before a Fair Work Australia (FWA) conciliator on 16 September 2011 but did not resolve.
[5] The unfair dismissal application was set down for a two day Hearing in December 2011 but deferred at the request of the parties to a later time. Not only was this application deferred but so were the other two related unfair dismissal applications: Alan King (U2011/1699) and Brett Harris (U2011/1702).
[6] All three unfair dismissal applications were heard before myself (Macdonald C) concurrently in Newcastle on 26, 27, 28, 29 and 30 March and 29 May 2012. An inspection of the Respondent’s mining operations in the Hunter Valley was held on 28 May.
[7] The Applicant (and the applicants in the other two unfair dismissal applications) were represented by Mr Alex Bukarica of the Construction, Forestry, Mining and Energy Union (the CFMEU/the Union). Mr Bukarica was assisted by Mr Thomas.
[8] During the concurrent hearings, Mr Bukarica called the following witnesses:
Lee Thorpe - Applicant (U2011/1700)
Brett Harris - Applicant (U2011/1702)
Allan King - Applicant (U2011/1699)
Daren Watson - Employee and union representative
[9] The Respondent was represented by Mr Anthony Longland, solicitor, and assisted by Mr Young, solicitor.
[10] During the concurrent hearings, Mr Longland called the following witnesses:
Kaz Reynolds - B Crew employee/complainant
Ben Turner - B Crew employee/complainant
Perry Wild - Maintenance Supervisor (B Crew)
Nathan Collyer - Assistant Supervisor (B Crew)
Kristy Wilson - HR Specialist
Katrina Mason - HR Advisor
Steve Jackson - Maintenance Manager
Brett Johnson - Mobile Maintenance Superintendent (of five crews)
Graeme Holland - Head of Human Resources
Tom Lukeman - General Manager
BACKGROUND
[11] Mr Lee Thorpe (the Applicant) was employed by the Respondent as a Maintenance Electrician at its Hunter Valley Operations Open Cut Coal Mine. The Respondent is a subsidiary of the global mining company, Rio Tinto.
[12] The Hunter Valley Operations has a workforce comprising employees (over 1000 employees) and contractors (actually employees of contractors and they number 600). The employees are engaged on either a collective enterprise agreement or an individual contract.
[13] Mr Lee Thorpe commenced employment on 31 November 2005. He was engaged under the collective enterprise agreement.
[14] For some time, Lee Thorpe worked in the B Crew, Mobile Maintenance Division. The other two applicants, King and Harris, also worked in B Crew. Around December 2010, Mr Thorpe transferred to a different crew outfit.
[15] According to the witness statement of Perry Wild (Ex. 20), there are around 11 permanent employees in B Crew (8 mechanics and 3 auto-electricians) and 5 contractors who generally perform the same work as the employees. Thorpe, King and Harris were employees who were summarily dismissed by the Employer.
[16] The work B Crew does, involves the servicing and maintenance of mining vehicles in the Mobile Maintenance Workshop (the Workshop). The majority of the work is done in the Workshop but on each shift generally 2 mechanics and one auto-electrician are assigned to do field work on vehicles that have broken down in the coal pits.
[17] B Crew works a 7 day fortnight roster involving both day and night shifts.
[18] According to the Respondent’s case, three workers (Reynolds, Turner and Link) were the subject of harassment and intimidation over a period of time. Reynolds was engaged as an employee. Turner was engaged as a contractor but became an employee and Link was engaged as a contractor. Their harassment and intimidation, said the Respondent, was carried out by Thorpe, King and Harris (all employees).
[19] The alleged harassment and intimidation came to a head through the Curtis Smith incident.
[20] Ben Turner (then an employee, formerly a contractor) had a conversation in late July 2011 with a Curtis Smith (a contractor). Turner said he was told by Curtis Smith that Harris had told Curtis Smith that contractors (actually employees of contractors) should not speak to Turner.
[21] Turner deposed he took this message to mean that Harris and other unionists did not like it when contractors spoke to full time employees who were employed under individual contracts, as opposed to the collective enterprise agreement. (Ex. 19, para 56)
[22] Turner, on the same day, mentioned the Curtis Smith message to Nathan Collyer, Assistant Supervisor to B Crew (and under Perry Wild). Turner said to Collyer not to mention anything about this Curtis Smith message. But Collyer responded he had a duty of care to do so. Brett Johnson, Mobile Maintenance Superintendent, confirmed that there is sometimes an obligation to act on information - depending on seriousness of allegation - even though a worker asks that no action be taken. (PN 6635)
[23] In the meantime, Reynolds deposed he was approached by Turner who said he had slipped up by telling Collyer of the message. Turner asked Reynolds to tell Curtis Smith of the slip up because probably questions will be asked of Curtis Smith. Reynolds informed Curtis Smith of the slip up, as requested by Turner. (Ex. 18, paras 100 to 102)
[24] Collyer reported Turner’s “slip up” to Wild who reported the matter to Brett Johnson who discussed the matter with Holland. It was agreed by Johnson and Holland to invite the CFMEU President (Kerry Wild) to speak to the employees and advise them that that sort of reported conduct was not acceptable. The CFMEU President held such a meeting of employees and contractors on the weekend.
[25] Reynolds did not attend this weekend meeting as he was off work to move house. He did not return to work until the following Wednesday, 3 August.
[26] The meeting of union members and contractors took place in the Workshop. Some unionists were asking the contractors as to why they had dobbed in the unionists. Turner was at the meeting and did not disclose that it was not a contractor(s) who had dobbed in the unionists, but himself (an employee). Neither Kaz Reynolds (an employee) nor Craig Link (contractor) was present for that meeting as they were not at work.
[27] Turner was off work for a couple of days and returned to work on Wednesday, 3 August. He met up with Kaz Reynolds. Turner deposed that he asked Reynolds if the “BK fellows have been a bit funny around you?” Reynolds responded in the affirmative and added that they were not talking to him despite his attempts to talk to them. Turner then told Reynolds why the BK fellows (contractors) were not talking to him - Reynolds had dobbed in Curtis Smith. Reynolds responded, “I’ve never said a fucking word about it.” (Ex. 19, para 64)
[28] Reynolds deposed that he approached Curtis Smith and said it was not him who caused Perry Wild to talk to Curtis Smith. Further, Reynolds said he was snatching the job. It was a serious thing, he said, to be accused of reporting another worker to the bosses. (Ex. 18, para 108 to 111) (As to that defence by Reynolds that it was a serious thing to be accused of reporting another worker to the bosses, Reynolds witness statement advised that he had done that very thing. He reported to Neil Smith, the then Maintenance Manager, that King and Harris slept during work on a number of occasions on night shifts - Ex. 18, paras. 41-47.)
[29] Later that night, Reynolds contacted Perry Wild (Maintenance Supervisor, B Crew) and told him about what had been happening on the job. He decided to make a formal complaint about the harassment he had witnessed and did so, the next day, 4 August. He met with Johnson (Mobile Maintenance Superintendent), Wild (Maintenance Supervisor B Crew) and Holland (Head of Human Resources).
[30] On Thursday 4 August 2011. Lee Thorpe was called to a meeting for an unknown reason. Present at the meeting were Steve Jackson (Maintenance Manager), Brett Johnson (Mobile Maintenance Superintendent), Lee Thorpe and Steve Scott (employee support person). Mr Thorpe was advised that he was being suspended from work on full pay pending an investigation. He was advised of allegations of harassment and intimidation being made against himself by Reynolds only. No further information was provided to him. The other two applicants, King and Harris were also stood down on full pay for the same reasoning. (Three other employees, Chris Giddins, Sean Logue and Brendan Boyd, were also stood down on full pay. Following the investigatory process, Chris Giddins was not given any disciplinary action, Sean Logue was given a final written warning and Brendan Boyd had his services terminated but he did not lodge an unfair dismissal application.)
[31] On Friday 5 August, Chris Giddins was interviewed. He had a support person (Watson). The minutes of his interview were not put in as evidence. Arising out of the interview process, he was not given any disciplinary action.
[32] On Monday, 8 August, Lee Thorpe attended a meeting with Steve Jackson, Brett Johnson and Graeme Holland (Head of Human Resources for the Respondent). Attending as well, as an employee support person, was Darren Watson. The handwritten minutes of the meeting were taken by Brett Johnson who later had these minutes typed up by Ms Eliza O’Shea (Human Resource Officer). (Meetings were also held that day for King and Harris.)
[33] During this meeting, Graeme Holland raised various matters with Thorpe as to his interaction with other fellow employees on the job, in particular, Kaz Reynolds. He was asked such things as to whether he had refused to shake the extended hand of Reynolds; did he ask Reynolds if he was paid monthly or fortnightly; had he ever called anyone a scab; and had he told other employees it was OK to talk to Reynolds because Reynolds was going to join the Union? The minutes of that meeting show that Holland had a discussion around harassment with Thorpe. (Ex. 26 - GH 7)
[34] Interview meetings were also held with Logue and Boyd on that Monday. The minutes of their interviews were not put in as evidence.
[35] On Tuesday, 9 August, Ben Turner made out a statement of allegations of harassment and intimidation against Thorpe, King and Harris.
[36] On Thursday, 11 August, Lee Thorpe attended a meeting with Steve Jackson, Brett Johnson, Graeme Holland, and Eliza O’Shea. Attending as well, as an employee support person, was Darren Watson. Ms O’Shea took and typed up notes of the meeting. (Ex. 26, GH-10) The duration of the meeting is not recorded but there are just over seven pages of questioning and responses over various issues. Arising out of the meeting, Lee Thorpe was given a Show Cause letter. (Meetings were also held that day for King and Harris.)
[37] Interview meetings were also held with Logue and Boyd on that Thursday. The minutes of their interviews were not put in as evidence. Arising out of their interviews, Logue was given a final written warning. When and how this occurred is unknown. Boyd was given a Show Cause letter.
[38] On Friday, 12 August 2011, Lee Thorpe attended the Show Cause Meeting. The same persons, as for the day before, were present. Eliza O’Shea took and typed up the minutes of the meeting. (Ex. 26, GH-14) At the conclusion of the meeting, Lee Thorpe was asked to wait outside whilst Graeme Holland telephoned Mr Tom Lukeman, General Manager of the Respondent. Having been appraised of the Show Cause Meeting responses of Lee Thorpe, the General Manager decided that the services of Lee Thorpe should be terminated. Mr Thorpe was presented with a termination letter of the same date, 12 August, advising of summary dismissal for serious and wilful misconduct.
[39] The reason for summary dismissal was the harassment and intimidation of two fellow workers, Kaz Reynolds and Ben Turner. The termination letter is silent on any harassment or intimidation of Craig Link. (Ex. 28, TL-3) (Meetings were held with King and Harris on the same day and they also were summarily dismissed.)
[40] Boyd had his services dismissed on that Friday. It is not known whether it was a dismissal with notice or summary dismissal. The minutes of his interview was not put in as evidence. Logue was issued with a final written warning. The minutes of that interview was not put in as evidence.
FINAL SUBMISSIONS
For the Applicant
[41] Mr Bukarica, for the Union, provided to FWA a detailed written submission of some 130 pages on behalf of the three dismissed members. (Ex. 29) That document comprised two parts: Part A - “General matters common to each application” and “Submissions concerning credit of key employer witnesses”; and Part B - “Evidence and submissions individual applicants” and “Submissions concerning remedy”.
[42] FWA sets out below the main issues raised in that document under Part A and Part B (but only in respect of the Applicant for this particular Decision - and not, unless relevant, for the other two applicants).
Part A - General matters common to each application.
[43] In respect of Part A, Mr Bukarica submitted as follows:
(a) The Respondent’s essential contention against all three applicants is that they engaged in a co-ordinated and predatory campaign (a joint conspiracy) of harassment against Mr Reynolds and Mr Turner.
(b) In alleging a conspiracy or collective campaign, the Respondent needs to prove that allegation of serious misconduct to the appropriate standard of proof. Mr Bukarica submitted that few, if any, of the specific instances relied upon by the Respondent to support its collective campaign allegation, can be properly characterised as “serious” or “major” breaches of the Respondent’s Disciplinary Procedure Policy (Coal & Allied Hunter Valley Operations Disciplinary Procedure).
(c) The standard of proof for serious misconduct is the Briginshaw standard (Briginshaw v Briginshaw ([1938] 60 CLR 336) and the onus is on the Respondent to meet that standard of proof.
(d) The Act, as well, defines “serious misconduct” at s.12 by reference to the definition contained in the Fair Work Regulations 2009. Does the conduct alleged against the three dismissed employees fall within the categories of misconduct contained in the Fair Work Regulations 2009 at 1.07 ?
(e) The Respondent has a Disciplinary Procedure Policy and a Bullying and Harassment Policy (Rio Tinto Coal Australia Workplace Diversity, Harassment & Equal Opportunity Policy). The evidence reveals repeated deficiencies in the application of the Bullying and Harassment Policy in the context of the Respondent’s investigation process leading to the dismissal of the three employees. It is difficult to see how any of the particular allegations (of instances of misconduct) could fall within the category of “serious” or “major” breach of the Disciplinary Procedure Policy.
(f) The Respondent carries the onus of proving that a conspiracy took place against Turner and/or Reynolds by the three dismissed employees and that the alleged conduct of the three dismissed employees is to be categorised as “serious” or “major” breach conduct. The Union submitted that the allegations only approach the category of serious misconduct if it is accepted that they are examples of repeated and deliberate behaviour forming part of a joint campaign or conspiracy involving the applicants.
(g) As a general submission, there are some very serious problems with the state of the evidence relied upon by the Respondent. Firstly, there are credit issues concerning the two complainants (Turner and Reynolds in particular). The Respondent erred in not obtaining independent corroborating evidence to support the allegations of the two complainants. Secondly, the Respondent adopted a view that it had to choose in absolute terms that either the complainants or the applicants were telling the truth, as opposed to that at least some of what the applicants were saying in their defence was true. This led the Respondent to err in the application of an appropriate sanction - as the Respondent denied the applicants the benefit of the doubt. Thirdly, the evidence is deficient in the Respondent’s case because of an almost total lack of contemporaneous investigation of the complaints. Fourthly, the Respondent relied upon a large amount of relatively poor quality “evidence” that is, opinion, hearsay, circumstantial or unfairly prejudicial evidence.
(h) The evidence reveals numerous failures in the Respondent’s investigation process leading to the dismissals. Firstly, the Respondent refused to allow the applicants to have proper particulars of the allegations made against them prior to the commencement of the formal interviews on 8 August 2011. Secondly, the above lack of proper particulars, impacted on whether the applicants were given a proper opportunity to respond to the allegations - as in marshalling corroborative evidence in their defence. Thirdly, the applicants were not given sufficient time to prepare a response to the “show cause” letters, which is the final step in the disciplinary process before an employee is dismissed. Fourthly, the Respondent’s investigation process is flawed because of the failure of its relevant officers to investigate apparent complaints about victimisation and bullying in a contemporaneous manner. Thus, the Respondent relied upon allegations of instances of conduct by one or more of the applicants, being in some cases many months old, to justify summary dismissal. Fifthly, the Respondent dismissed Allan King and Brett Harris for reasons that included matters not dealt with (however briefly) in the “show cause” letters of 11 August 2010.
Submissions concerning credit of key employer witnesses.
(i) The dismissal of the applicants arose directly from the allegations made about them by Kaz Reynolds. The termination of the applicants’ employment is precisely the outcome sought by Kaz Reynolds. Mr Bukarica submitted that Kaz Reynolds is an habitual liar and that he conceded lying on a number of occasions and including lying under oath. Accordingly, wherever the allegations of Kaz Reynolds cannot be corroborated, then, when his evidence is in conflict with another person, the evidence of the other person is to be preferred.
(j) As to the other complainant, Ben Turner, the Union submitted that the evidence suggests he is a person who is very disposed to give his Employer what he perceives the Employer wants regardless of the impact on his fellow workers. Ben Turner is an admitted informer on his fellow employees for malingering on the job, to Perry Wild and presumably to curry favour in order to further his ambitions to become a supervisor. In the witness box, he presented as someone evasive and wanting to stick to a script, regardless of whether the script was starting to sound increasingly ridiculous. His character and honesty were brought into question in relation to his role in what can be termed the “Curtis Smith rumour incident”.
Part B - Evidence and submissions concerning individual applicants.
Applicant - Lee Thorpe
[44] Mr Bukarica’s written submissions concerning the allegations made by Reynolds and Turner and the evidence concerning those allegations are set out in detail in Exhibit 29 (pages 40 to 59 inclusive). The essence of the Union’s case on behalf of Lee Thorpe is set out below.
Allegations by Kaz Reynolds
[45] Kaz Reynolds claimed that he had been bullied and harassed by Lee Thorpe.
[46] Reynolds asserted that when he approached Thorpe for the first time, Thorpe “looked him (Reynolds) up and down”, had a “sour look on his face” and Thorpe refused to shake his hand. That allegation is denied by Thorpe. Included in his defence was that Thorpe was approached from behind by Reynolds and Thorpe was otherwise preoccupied with getting ready for his shift when approached by a stranger (Reynolds) from behind. As Thorpe had never met Reynolds before, why would Thorpe engage in harassment and intimidation of him?
[47] Reynolds asserted that Thorpe then asked Reynolds if he was paid monthly (individual contract pay method) or fortnightly (collective enterprise agreement pay method) and Reynolds responded what did it matter. Thorpe allegedly said, “It’s going to be a long fucking night.” Thorpe agreed he said those words but the context was the forthcoming dogwatch shift and the work involved.
[48] Reynolds and Thorpe travelled in a vehicle out to the worksite. Whilst in the vehicle, there was a discussion about individual contracts and the collective enterprise agreement and unionism. Reynolds asserted that he perceived that unless he said what Thorpe wanted to hear, then Thorpe would make Reynold’s life difficult. Mr Bukarica said that Thorpe did nothing wrong in enquiring and assisting a new employee concerning union membership.
[49] Thorpe denies calling Reynolds a “scab” or pressuring him about union membership.
[50] Reynolds makes very few allegations against Thorpe.
[51] Reynolds and Thorpe only spent a few weeks working in the same B Crew team because Thorpe transferred to another part of the mine site (Lemington) in December 2010.
[52] Reynolds is a witness of no credit.
[53] Thorpe knew nothing of Reynold’s allegations until first aired several months later in August 2011.
Allegations by Ben Turner
[54] Turner alleged that Thorpe ignored him, or grunted an “hello” and only engaged in conversation to the bare minimum required for work. Mr Bukarica submitted that there was no evidence that Thorpe deliberately engaged in an exercise of ignoring Turner. Thorpe spoke to Turner to the degree necessary to perform the work at hand.
[55] There was only one conversation that took place between Turner and Thorpe in October or November 2010 and otherwise Thorpe had (legitimately) nothing to do with Turner over the entirety of his working life at the mine site.
[56] In that one conversation according to Turner, Thorpe queried whether Turner was signing up to an individual contract. Turner rebuffed this question by saying that Thorpe was no friend of his.
[57] Turner claimed that he was talking to a Brady Borg, an employee, when Thorpe walked past, paused and addressed Borg only: “G’day Brady. Why are you always talking to your contractor mates?” Mr Bukarica said that Turner could not say where this incident happened and as to when. Turner could only say a date “in 2010”. Thorpe had no recollection of any such conversation. The Employer did not call Brady Borg to give evidence.
[58] Mr Bukarica said that Turner agreed that Thorpe never abused or threatened him and never directly called him a scab.
[59] Mr Bukarica submitted that the Employer never approached Thorpe on a formal or informal basis about any allegations of harassment or bullying until August 2011.
[60] Turner’s issues of credit make his evidence generally unreliable.
FINAL SUBMISSIONS
For the Respondent
[61] The Respondent provided FWA with a typed Respondent’s Final Submissions (RFS). (Ex. 31) That RFS document is double sided and just over 180 pages in length. It comprises a General Submission part, followed by submissions on Thorpe, Harris, King; Credibility and bullying; and finally, Procedure and remedy. There is also an Annexure called: Media article regarding pig dogs.
[62] The General Submission deals with a number of issues including employment arrangements (employees on individual contracts and employees covered by the collective enterprise agreement), policies regarding harassment and onus/standard of proof. Mr Longland disputed the Union’s submission on the applicability of Regulation 1.07 to unfair dismissal cases. The opening to the General Submission states that the resolution of the matters before FWA involves making findings about the credibility of various witnesses. Further, the background of strong negative views about individual contracts presents a plausible motive for some (but not all) of the harassment conducted by the three applicants. The RFS added that the history of anonymous vandalism and graffiti in the Workshop shows that such conduct does occur (making otherwise extraordinary allegations more plausible).
[63] The RFS said that this was a case about the individual conduct of Thorpe, King and Harris and which conduct included the bullying and harassment of their co-workers. Reynolds is then quoted as saying about these three individuals, “The Union didn’t harass me, these guys did.”
Applicant - Lee Thorpe
[64] The Respondent’s case against Lee Thorpe is set out in its typed Respondent’s Final Submissions (RFS). (Exhibit 31, pages 36 to 62 inclusive) The essence of the Respondent’s case against Lee Thorpe is set out below.
Allegations by Kaz Reynolds
[65] Reynolds asserted that at their first meeting, Thorpe ignored Reynold’s handshake gesture and gave Reynolds a sour look. Reynolds perceived he was being purposefully ignored by Thorpe. When Thorpe was questioned over the handshake incident, he changed his evidence from remembering shaking Reynold’s hand, to he honestly could not remember if he did. As Thorpe was equivocal about his evidence, then the evidence of Reynolds should be preferred.
[66] When Thorpe questioned Reynolds if Reynolds was paid monthly or fortnightly, his tone of voice was angry, loud and threatening, according to Reynolds.
[67] Thorpe gave inconsistent evidence as to whether he used or did not use the word “fucking” in the expression, “it’s going to be a long night”, to Reynolds. The contextual argument put by Thorpe to explain the “long night” comment should be rejected.
[68] A diary note (Ex. 9) kept by Thorpe about that first meeting with Reynolds, supported the Respondent’s case that Thorpe asked Reynolds whether he was on monthly or fortnightly pay.
[69] The vehicle conversation about monthly or fortnightly pay method was engaged in by Thorpe in an intimidating manner with an implied threat of social exclusion. That attitude by Thorpe caused Reynolds to tell Thorpe what he wanted to hear. Lee Thorpe then trusted Reynolds and spoke freely and critically about the Hunter Valley Operation (HVO) and the individual contract. After the vehicle ride, Thorpe disclosed to Reynolds his attitude to people who did not join the Union and signed individual contracts. Thorpe then said that Turner and Mong (Craig Link a.k.a. Mongoloid) are scabs and should be classed and treated as scabs. Mr Longland for the Respondent submitted that Thorpe’s comments are a direct harassment of Reynolds (don’t talk to scabs or you will be classed and treated as a scab) and a deliberate harassment of Turner and Link.
[70] Subsequent to the first shift meeting, Thorpe spoke to Reynolds about joining the Union and that the “other guys in the workshop are speaking to you because I told them you are alright ... ”. Thorpe also called Reynolds “a fucken scab ya cunt”.
[71] Mr Longland submitted that the evidence of Reynolds was to be preferred and, if accepted, then Thorpe has lied repeatedly during the investigatory process in denying the allegations. That in itself would constitute a valid reason for the dismissal of Thorpe.
Allegations of Ben Turner.
[72] Thorpe only spoke once to Turner in the year and a half they were together on B Crew. That conduct by Thorpe was a deliberate strategy by Thorpe to isolate and harass Turner.
[73] Turner said that the only time Thorpe spoke to him was to convince him not to sign an individual contract, around September 2010.
[74] Thorpe ignored or grunted “hello” when Turner said “hello”.
[75] The Respondent said that the witnesses Wild and Collyer gave evidence that Thorpe did not speak to Turner during shift starts.
[76] The Respondent submitted that Thorpe gave shifting evidence as to whether he did (a couple of times) or did not speak to Turner. Further, Thorpe said he never worked with Turner but he was in close proximity for around 8 months at the start of shifts and that close proximity allowed Thorpe to conduct a bullying and harassment campaign against Turner.
[77] Thorpe told Reynolds not to talk to scabs and named Turner and Mong (Craig Link a.k.a. Mongoloid) in that regard. The evidence of Reynolds supported the allegation that Thorpe ignored Turner as part of a deliberate campaign of bullying and harassment.
[78] Turner gave evidence of this deliberate campaign by Thorpe when Turner was speaking to Brady Borg. Thus, he said Thorpe was walking past and said to Borg, “G’day Brady. Why are you always talking to your contractor mates?” Thorpe, allegedly, gave Turner a disgusted look. Thorpe gave inconsistent evidence on this point - he could not recall the conversation but later said he denied the incident.
[79] Thorpe would stare at Turner at muster meetings as part of an isolation campaign.
CREDIT OF WITNESSES
[80] Both Mr Bukarica and Mr Longland submitted that I would need to make findings on credit about the witnesses in determining the outcome of the unfair dismissal applications.
[81] My approach in determining each unfair dismissal application, has been to decide issues on the evidence firstly and, if necessary, decide issues on credit.
[82] It is not necessary that a credit determination be made about every witness and where no credit finding is made about some of the witnesses, then nothing turns on that fact.
Credit and Kaz Reynolds
[83] Kaz Reynolds is a self admitted storyteller. He told some “tall stories”. Associated with these “tall stories” is an issue as to whether he was lying.
[84] The Union’s Final Submissions deal with the credit of Reynolds and pointedly, the Union says that Reynolds is an habitual liar. (Ex 29, pages 26 to 31) The RFS deal with the issue of credit generally and in particular with Reynolds and the Respondent put that Reynolds was prone to exaggeration but that did not mean he was lying. (Ex. 31, pages 156 to 160)
[85] The Union submitted that Reynolds lied to other employees of the Respondent when he said he owned an auto-electrical business with an annual turnover of $2 million. Reynolds agreed under cross-examination that that was not true. The turnover, he said, was $280 to $350,000. (PN 3179 to 3182)
[86] The Union submitted that Reynolds lied to other employees of the Respondent about having employees in the Northern Territory and Groote Eylandt. When asked why he told “that particular lie”, Reynolds responded, “I was just going along with the lies. At the time I was in discussions with superintendants back in Western Australia, looking at my options to leave New South Wales.” A few questions later, Reynolds said, “Every lie that I told these guys (other employees) was deliberate ... Because I didn’t want them to know me. I wanted them to think of me as a storyteller so I could go to BHP and just prove myself as an auto-electrician.” When then asked how lying would help him get a job at BHP Mount Arthur, he responded, “I didn’t say it’d help me get a job there”. A few questions later, he said, “And I basically after that first one, everything was a lie from then so I didn’t care. I didn’t care what I said to them basically.” In defence of further questioning of his lying nature, he denied being a liar in the normal course of events and was only lying in this particular circumstance (to the other employees). (PN 3448 - 3472)
[87] In respect to Reynold’s defence that he lied to the other employees he agreed under cross-examination that he also lied to HVO management (the Respondent’s management) about how much money his business made. (PN 3318 - 3321)
[88] The Union dealt with at length Reynold’s lie about his involvement with Anthony Mundine.
[89] Reynolds said in his filed witness statement that he exaggerated when he told people that he “had fought with Anthony Mundine. In truth I had played against him in a rugby league game at sports festival when I was around 11 years old.” (Ex. 18, para 156) Under cross-examination, in the witness box, this “In truth” correction was shown to be a lie. Mr Bukarica questioned Reynolds as to how he could have “played against him (Mundine) in a rugby league game” when Mundine was 17 years of age at the time that Reynolds was 11 years of age. Initially, Reynolds responded that Mundine played “at the same carnival” as he did. Eventually, Reynolds admitted that he had lied when he made his “In truth” correction in his witness statement. (PN 3400 - 3422) The Union submitted that this transcript extract showed that Reynolds had lied under oath.
[90] The Union also raised the “pig dogs” story as one telling against Reynold’s credit. Reynolds told people he had shot the hunting dogs (crossbred pig dogs) of trespassing hunters and that his action was necessary under the circumstances. He denied he had told people that he had bashed up the trespassers. He gave evidence that the trespassers were not carrying rifles as far as he could tell. (PN3504 - 3554)
[91] The Union submitted that this incident was a fabrication. The Respondent referred to a media article where a farmer shot a pig dog on his property.
[92] I am unable to make a finding about this incident as to whether it is a fabrication or not. In any event, I do not need to do so in order to make a finding about the credit of Reynolds.
[93] I do not need to make a finding as to whether Reynolds is a story teller or that he tells lies, because he admitted to those matters.
[94] The RFS put that past exaggerations by Reynolds do not indicate that he is lying in these circumstances (his claims about harassment and bullying). I reject that submission. How am I to know when Reynolds is telling the truth given that he is a self admitted story teller and liar? In particular, I was not impressed with his credit as a witness in regard to the Anthony Mundine story. Thus, he filed a witness statement in which he corrected a previous falsehood by him in respect to saying he had fought Mundine. This witness statement now sets the record straight: “In truth I had played against him in a rugby league game ...” (my underlining added). So, Reynolds was saying in his witness statement that he was now tellingthe truth about his involvement with Mundine. But in the witness box, under cross-examination from Mr Bukarica, he admitted that this “In truth” correction (I am now telling the truth) was a lie. His credit as a witness was seriously damaged by this one piece of cross-examination relevation.
[95] Reynolds denied being a liar generally and only lied in these circumstances in order to keep in good with Thorpe and others. But that defence does not make sense. Reynolds did not need to tell these stories about Anthony Mundine, the $2 million business turnover and having employees working for him, in order to carry on his alleged lie to Thorpe and others that he was going to join the Union (when he had no intention of doing so). (He admitted to this Union membership intention as being a lie - PN 3394.) I find that these story tellings have no relevance to Reynold’s defence that he was trying to keep in good with Thorpe and others. His indicating to Thorpe and others that he was going to join the Union, was sufficient in itself to keep him in good stead with those unionists given that that was his intention - while he bought time to look for another job elsewhere (for example, BHP, Mount Arthur). The story telling was irrelevant to his purpose of leading on unionists about joining the Union.
[96] Accordingly, in view of all of the above, I find that where there is a conflict in the evidence between Reynolds and Thorpe, then I prefer the evidence of Thorpe.
Credit and Ben Turner
[97] The Union submitted that I should make an adverse finding about the credit of Turner. In that regard, I was referred, for example, to the cross-examination of Perry Wild by the Union. In that cross-examination, Wild confirmed that Turner would inform Wild of employees who were malingering in the workshop and did so frequently. Turner had also told Wild that he aspired to be a supervisor. (PN 5492-5502)
[98] Whatever the foregoing shows, it does not show Turner to be a liar. He may be career minded and inform on his fellow employees to achieve that end, but it does not follow that he is a liar.
[99] Having considered the Union’s submission on the credit of Turner, I decline to accept that submission.
Credit and Lee Thorpe
[100] The Respondent’s submissions on Lee Thorpe and his credit, rely largely upon describing several of his responses as being “shifting” and “disingenuous” in explanation.
[101] I reject that submission in particular and the Respondent’s submission overall on the credit of Thorpe, having regard to his responses and demeanour in the witness box.
ONUS and STANDARD OF PROOF
[102] Given that this is a summary dismissal case, then the Respondent carries the onus to prove that the facts existed to support the Respondent’s decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers, Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990 35 IR 70 at 83-84.
[103] The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the applicant) has to prove that those facts existed, on the balance of probabilities.
[104] The above standard of proof required by the Respondent is the Briginshaw standard of proof: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 354-369, per Dixon J.
[105] Von Doussa J in Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 435, applied the principles recognised by Dixon J in Briginshaw and said that the strength of the evidence required (to prove a case on the balance of probabilities) may vary according to the gravity of the fact to be proved. Where a charge of fraudulent and dishonest conduct is made, the court will require a higher degree of probability than it would if it were considering an allegation such as negligence.
[106] During final submissions, two issues arose that I now address.
[107] The first issue went to a difference of opinion between the advocates about the applicability of Regulation 1.07 to unfair dismissal cases.
[108] Mr Bukarica tendered a written submission that in part dealt with onus. Thus, the written submission (Ex. 29) said that the onus was on the Employer to prove the existence of facts or circumstances to justify the summary dismissal. If the Employer met that onus, then FWA had to decide whether these facts or circumstances amounted to serious misconduct. It was the next step in this “onus” submission, to which Mr Longland objected.
[109] Thus, the Union said that the Act defines “serious misconduct” at Section 12 (The Dictionary section of the Act) by reference to the regulations. The Fair Work Regulations 2009 at 1.07, gives the meaning of “serious misconduct”. Regulation 1.07 gives examples of what constitutes “serious misconduct” - for example: theft, fraud, assault. I was then being asked to determine whether the facts or circumstances fell within the meaning of “serious misconduct” as defined by Regulation 1.07. (The written submission of the Union goes on to the next step which is applying the facts or circumstances to the Employer’s policies of (a) Bullying and Harassment and (b) Disciplinary Procedure. That next step submission is not relevant for present purposes.)
[110] Mr Longland submitted that if I was to adopt that line of reasoning by the Union (as to the applicability of regulation 1.07 to unfair dismissal cases), then that would be an appellable error.
[111] Mr Longland said that the term, “serious misconduct” does not appear in “Part 3 - 2 -Unfair Dismissal” section of the Act and accordingly I could not apply the meaning of “serious misconduct” contained in Regulation 1.07, to the unfair dismissal applications before FWA. That term was instead, contained in the National Employment Standards, Subdivision B - Redundancy Pay and advised that an employee was not entitled to redundancy pay for reason of “serious misconduct” (Section 123(1)(b)).
[112] That submission of Mr Longland appears to be correct. I was not taken to any case law on the point.
[113] In any event, the definition of “serious misconduct” in Regulation 1.07, might provide some guidance for the three (if at all) unfair dismissal applications under consideration.
[114] The second issue was raised by Mr Longland in objection to a submission from Mr Bukarica that I should draw a Jones v Dunkel finding against the Respondent for their failure to produce a witness(es) to support either Reynolds and/or Turner’s allegations where Reynolds and Turner claimed that there was a witness(es) to certain allegations made by them against Thorpe, or King or Harris.
[115] Mr Longland put in oral submissions, that the Jones v Dunkel inference should instead be found against the Union (that is, Thorpe or King or Harris) for failing to produce a witness(es) to support their respective denial(s) of allegations made by Reynolds and/or Turner.
[116] Mr Longland referred to a passage from a New South Wales Court of Appeal Decision for support that the onus was on the Union to call the witness(es): Payne v Parker [1976] 1 NSWLR 191. That passage is from the judgement of Glass J A and is reproduced below. For completeness of understanding, I have also included the prior paragraph which is proposition number six from the judgement of Glass J A. This proposition number six, sets out the three conditions for the application of the Jones v Dunkel principle. The paragraph Mr Longland referred to is the first condition. I have also included the second and third conditions from the judgement:
“6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number:
(a) the missing witness would be expected to be called by one party rather than the other,
(b) his evidence would elucidate a particular matter,
(c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid. , Regina v. Burdett , or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital , or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. . It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. . If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. . Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v. Australian Portland Cement Pty. Ltd.; his safety officer: Earle v. Castlemaine District Community Hospital; his accountant: Steele v. Mirror Newspapers Ltd. ; his treating doctor: O'Donnell v. Reichard
(8) According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts: Jones v. Dunkel , might have proved the contrary: ibid. ; would have a close knowledge of the facts: O'Donnell v. Reichard , or where it appears that he had knowledge:Nuhic v. Rail & Road Excavations. I would think it in sufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.
(9) The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory. The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege: Wigmore, par. 286.”
[117] Mr Longland submitted that the witnesses (Logue and Boyd) to certain events should have been called by the Union to support say, the defence of King. He relied upon the extract from Payne v Parker to support that submission. Thus, he described Logue and Boyd as being both Union members and being two employees who did not sign up to individual contracts of employment. Accordingly they could be regarded as being in the same camp as King rather than in the same camp as Reynolds. (PN 7969)
[118] I reject that submission for the reasoning set out below.
[119] The onus was on the Employer to prove the misconduct that it claimed that the three applicants had engaged in, given that it was a summary dismissal: Pastrycooks’ Case.
[120] The Employer carried the onus to show, on the balance of probabilities, that it had the evidence to support its decisions of summary dismissal.
[121] To that end, the Employer (per Holland, Head of Human Resources) carried out an investigation which entailed interviews with Reynolds at first instance, thence the six suspended employees (including Logue and Boyd), an interview with Turner and perhaps other interviews of a formal or informal nature (Lukeman, Jackson, Johnson, Wild, Collyer, Wilson and Mason).
[122] Through that investigative process, the Employer gained knowledge about the evidentiary strength and weakness of each allegation made by Reynolds and Turner. In particular, the Employer had knowledge of the responses of say, Logue and Boyd, to certain allegations of Reynolds and Turner made against Thorpe or King or Harris that also involved Logue or Boyd. Those responses are recorded in the minutes of interviews of Logue and Boyd. (If the Employer was to submit that no minutes were kept of the Logue and Boyd interviews, then the interviewing officers, Holland and others, had the verbal knowledge of their responses to the Reynolds and Turner allegations.)
[123] The minutes of the Logue and Boyd interviews were not put in as evidence by the Employer. Why not? Given that the Employer had the knowledge, gained from these Logue and Boyd interviews, as to whether the Logue and Boyd responses supports or does not support certain Reynolds and Turner allegations against Thorpe or King or Harris, then the failure of the Employer to put these minutes of interviews into evidence, infers that the Employer knew that the responses of Logue and Boyd do not support certain allegations of Reynolds and Turner.
[124] For the Employer to then submit (turn a blind eye to its knowledge) that the Union had the onus to call say Logue and Boyd and through them provide knowledge to the Tribunal, is a shifting of the evidentiary onus that is upon the Employer (and not the Union) to prove, on the balance of probabilities, that it had the evidence to summarily dismiss the applicants.
[125] The Employer had the knowledge as to what Logue and Boyd knew through the investigation process and the onus was upon the Employer to call Logue and/or Boyd as witnesses to support its onus to prove, on the balance of probabilities, that it had the evidence to support its decision to summarily dismiss Thorpe, King and Harris. This knowledge factor, gained by the Employer through its investigation process, satisfies the second condition for the application of the Jones v Dunkel principle: “(b) his evidence would elucidate a particular matter;”. The failure of the Respondent to call Logue and Boyd, allows me to draw a Jones v Dunkel inference that had the Respondent called these witnesses, then their evidence would not have assisted the Respondent’s case.
[126] The foregoing reasoning goes to the consequence of the application of the Jones v Dunkel principle and hence is predicated on the basis that the Employer (per Holland) asked Boyd and Logue, during their interviews, the relevant enquiries pertaining to the Reynolds and Turner allegations and has knowledge as to their responses. If however, the Employer (per Holland) did not ask the relevant enquiries of Boyd and Logue, then the Employer does not have the knowledge of their responses and hence the Jones v Dunkel principle does not apply. In that situation, there has been a failure by the Employer to carry out a proper investigation.
[127] The consequence of a failure to carry out a proper investigation by the Employer is that the Employer cannot benefit from that failure by their submitting that the Union should have called Boyd or Logue to obtain the evidence to resolve a conflict in the evidence that should have been resolved by the Employer at first instance during its investigation. It is a summary dismissal case and the onus is on the Employer to prove, on the balance of probabilities, that it had the evidence to find that the alleged misconduct had occurred.
CONSIDERATION
[128] Lee Thorpe filed an unfair dismissal application against his summary dismissal on the grounds of harassment and intimidation of Reynolds and Turner.
[129] The RFS give a background of strong negative views about individual contracts as a plausible motive for some (but not all) of the harassment conducted by the three Applicants.
[130] The strong negative views found an outlet by way of graffiti on the toilet walls. But it was not one sided authorship. Brett Johnson gave evidence that the graffiti had a tit for tat theme because some of the graffiti-derogatory comments were made about the Union and some derogatory comments were made about non-unionists. (PN 6698-6706) For example Turner gave evidence of graffiti saying “I’m a scab and proud of it” and “scabs rule”. (PN 4496-4497) On the other side of the tit for tat, Turner deposed to this graffiti: “Selfish Cunts All bastards Scum” (which spells out “scabs”). (Ex. 19, para. 8)
[131] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
a) “whether the application was made within the period required in subsection 394(2);
b) whether the person was protected from unfair dismissal;
c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
d) whether the dismissal was a case of genuine redundancy.”
[132] The unfair dismissal application was made seven (7) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[133] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.
[134] Paragraph (c) and (d) of section 396 have no relevance in this case.
[135] The Applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[136] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
a) “the person has been dismissed; and
b) the dismissal was harsh, unjust or unreasonable; and
c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d) the dismissal was not a case of genuine redundancy.”
[137] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the Applicant said his dismissal was harsh and/or unjust and/or unreasonable.
[138] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
a) “whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
b) whether the person was notified of that reason; and
c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h) any other matter that FWA considers relevant.”
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[139] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.
[140] Mr Lee Thorpe had his employment terminated by Mr Tom Lukeman, General Manager, Hunter Valley Operations. He was provided with a termination of employment letter dated 12 August 2011. (Ex. 28, TL -3)
[141] The termination letter referred to his meetings with Steve Jackson, Brett Johnson and Graeme Holland on 8 and 11 August concerning allegations by Kaz Reynolds and Ben Turner that Thorpe had engaged in harassment and intimidation against them.
[142] The termination letter referred to a third meeting amongst Thorpe on the one hand and Jackson, Johnson and Holland on the other. This was a Show Cause meeting of 12 August.
[143] The termination letter stated that Thorpe had “been unable to provide an adequate explanation for your actions.”
[144] The termination letter advised that Thorpe’s actions constitute a major breach of the Hunter Valley Operations Procedure “which may result in termination of your employment.”
[145] The termination letter advised that Thorpe’s actions are a breach of the RTCA Code of Conduct and the RTCA Workplace Diversity, Harassment and Equal Opportunity Policy.
[146] The termination letter then set out a finding that Thorpe had engaged in misconduct, which had been established on the balance of probabilities, and that such misconduct was serious and wilful.
[147] The termination letter advised of the immediate (12 August) termination of Thorpe’s employment.
[148] FWA makes the observation that the termination letter does not set out the actions of Thorpe said to constitute serious and wilful misconduct.
[149] The original source documents for those actions (allegations by Reynolds and Turner against Thorpe) are attached to the witness statement of Mr Graeme Holland, Head of Human Resources at Hunter Valley Operations. (Ex. 26, GH-6 for statement of Reynolds and GH-13 for statement of Turner)
[150] The witness statements setting out the allegations of harassment and intimidation against Thorpe are Exhibits 18 (Reynolds) and 19 (Turner).
[151] The Respondent’s Final Submissions (Ex. 31) sets out the allegations of Reynolds and Turner against Thorpe and the evidence in support of those allegations.
REYNOLD’S ALLEGATIONS AGAINST THORPE
[152] The allegations by Reynolds of intimidation and harassment against him by Thorpe are set out in the Respondent’s Final Submissions. (Ex. 31, pp 49-62) I will adopt the format of the layout of the allegations contained in Ex. 31 for assessing the merits of the allegations.
First interaction at the photocopier
[153] The first allegation concerns the initial meeting between Reynolds and Thorpe on a night shift in November 2010. Reynolds came towards Thorpe from an angle behind Thorpe. Reynolds said “G’day, how are you going” and put out his hand, but Thorpe ignored his extended hand and gave Reynolds a sour look. Reynolds perceived that Thorpe was purposefully ignoring him.
[154] The RFS summarises Thorpe’s evidence as (a) agreeing that he looked Reynolds up and down but that was only because Reynolds came up to him from behind and that nothing was meant by it; and (b) Thorpe’s position regarding whether he shook Reynold’s hand changed over time from remembering shaking Reynold’s hand in the presence of Perry Wild, to, it was possible he did not shake his hand.
[155] The RFS summarises that Reynold’s clear recollection of this event should be preferred to Thorpe’s uncertain and shifting position as to whether he shook or did not shake Reynold’s hand. Further, the failure of Thorpe to accept Reynold’s handshake gesture was offensive and supports the Respondent’s overall case of intimidation.
[156] The RFS (para 203(b)) puts that the shifting position of Thorpe, as to he did or did not shake Reynold’s hand, comes when the investigation team, on 11 August, put to Thorpe that Perry Wild did not “recall” seeing Thorpe shake Reynold’s hand.
[157] However, the minutes of the investigation interview (Ex. 26, GH-10) comes on stronger than “recall” in terms of the interview conducted by Holland. The minutes of 11 August 2011 record Gary Holland putting to Thorpe that “Perry has denied witnessing this.”
[158] Under cross-examination in the witness box from the CFMEU, Perry Wild said as to the alleged handshake incident, “I just don’t recall either way whether it happened or not.” (PN 5612-5613)
[159] Wild’s evidence in the witness box is inconsistent with what Holland put to Thorpe at the start of the investigation interview of 8 August as to what Wild allegedly said at the time of the investigation. Thorpe was being asked during the investigation to respond to a denial by Wild as opposed to being told that Wild could not recall whether there was or was not a handshake. About halfway through the interview, Steve Jackson is recorded as stating to Thorpe that Wild does not recollect the incident of being in the room when Kaz offered his hand to Thorpe. (GH-10, page 86) That Jackson statement is consistent with the evidence of Wild but inconsistent with what Holland put to Thorpe. Although there are interview minutes for the meetings with Thorpe, no interview minutes (if any exist) for the questioning of Wild about the allegations made by Reynolds and Thorpe was put in as evidence.
[160] Given Wild’s evidence in the witness box that he had no recollection as to whether Thorpe did or did not shake Reynold’s hand, then it is not correct to say, as Holland did to Thorpe in the 8 August interview, that Wild denied Thorpe’s claim of being present when Thorpe shook Reynold’s hand. Putting a proposition to Thorpe, as Holland did, that does not line up with Wild’s evidence on the issue, was unfortunately misleading. It was put to him at the start of the interview and may have had an impact on his psyche for the rest of the interview. For example, when Jackson later in the interview put to Thorpe, the view of Wild that Wild had no recollection, Thorpe did not question the inconsistency between Holland’s “denial” proposition and Jackson’s “no recollection” proposition. Further to the impact on Thorpe’s psyche, Holland’s proposition about Wild’s denial was a proposition that Thorpe’s supervisor was denying Thorpe’s defence. Again, this denial proposition was put at the start of the interview meeting.
[161] The Respondent submitted that I should find that Thorpe’s evidence shifted from saying he shook Reynold’s hand to it was possible he did not and Reynolds did not waver on the point and therefore I should prefer the evidence of Reynolds. I reject that submission because Thorpe “shifted” his evidence, but after Holland put a misleading proposition to him and that could have impacted on his “shifting” response when Jackson posed his “no recollection” question to Thorpe for a response.
[162] I also note that when this allegation (and other allegations) of Reynolds (and Turner) was put to Thorpe, that several months (about nine months) had lapsed between the alleged incident (November 2010) and the investigation process (August 2011). That raises the issue of memory reliability for all participants, given that there was no contemporaneous investigation.
[163] There is a conflict in the evidence between Reynolds and Thorpe. There are no witnesses to the handshake incident. Because of my finding as to the credit of Reynolds, I prefer the evidence that Thorpe did shake Reynolds hand when extended.
“If you are paid monthly it’s going to be a very fucking long night for you.”
[164] The next incident in the Respondent’s case of intimidation by Thorpe against Reynolds, goes to the conversation that followed the “handshake” incident. (Ex. 31, paras 208-233) Reynolds asserted that Thorpe questioned him as to whether Reynolds was paid monthly or fortnightly. Reynolds responded with “What does it matter?” and Thorpe allegedly said, “If you are paid monthly it’s going to be a very fucking long night for you.” Thorpe’s tone of voice was allegedly angry, loud and threatening. (RFS’s - paras 208-209)
[165] By way of background, the Respondent engages employees and contractors (actually employees of contractors) in its Hunter Valley Operations. Within the category of employees, there are employees on individual contracts (paid monthly) and employees covered by a collective agreement (paid fortnightly). Mr Reynolds deposed that he had been told by an employee that persons on individual contracts earned around $10,000 more than persons covered by the collective agreement. (Ex. 18, para 11) It seems reasonable to FWA to draw from the evidence that the individual contract versus collective agreement carries the symbolic message that membership of a union is associated with the collective agreement only.
[166] The RFS put that the allegation of intimidation is to be seen against that background. The alleged comment by Thorpe goes to the threat of social isolation by Thorpe (if not others who are union members on the B crew team) because Reynolds is on an individual/paid monthly contract.
[167] The RFS analyses the evidence of Reynolds, Thorpe, Collyer and Wild and submits why the evidence of Reynolds should be preferred.
[168] The CFMEU Final Submissions deal with the evidence on this issue (Ex. 29, paras. 102 to 109) Thus Thorpe said he used the term, “This is going to be a long fucking night” but that it was said in the context that it was a dogwatch shift. Thorpe was into day two or three of trying to fix a loader. Thorpe had been trying to read the shift handovers from other electricians and he had just been instructed to take care of a new recruit (Reynolds).
[169] The issue then between the Respondent and the CFMEU is the context of the comment. Was it because of Thorpe’s enquiry of Reynolds as to fortnightly or monthly pay (as claimed by Reynolds) or was the comment due to Thorpe’s version surrounding the dogwatch shift ?
[170] The RFS say that Thorpe’s recollections of the words used included and did not include the word “fucking” and this goes to inconsistency in his recollections. Thorpe also was inconsistent as to the location (in the muster room or maybe 10 to 20 metres away from muster room) of that comment. I am not assisted by that submission by the Respondent, given that the event took place some nine months before the dismissal and memory reliability is an issue for my consideration given that lapse of time.
[171] Neither Collyer or Wild (witnesses called by the Respondent) could give context to the comment by Thorpe.
[172] There is a conflict in the evidence between Reynolds and Thorpe. There are no witnesses to the context of the incident. I prefer the evidence of Thorpe as to the context he gives to his “long night” comment.
[173] After the introduction, both Thorpe and Reynolds got into a car to head out for the night’s work. Reynolds said that whilst driving along, he asked Thorpe why it mattered if he was paid fortnightly or monthly. Thorpe allegedly replied that if Reynolds was paid monthly then he was not in the Union but if paid fortnightly, he was in the Union. Reynolds then says that Thorpe asked, “Where do you stand?” (Ex. 18, para. 21)
[174] The RFS relies upon Reynold’s account of the conversation to show that Reynolds question as to why it mattered if he was paid fortnightly or monthly, reflected Reynolds claim as to Thorpe’s demeanour and comment (about a long night) towards Reynolds at the time of their introduction.
[175] Thorpe was cross-examined on this issue and denied Reynolds account. Thorpe said there was a conversation in the car about union membership and individual contracts and Reynolds had a blow up about being lied to because he did not know that the site was a Union pit. (PN.1154 to PN.1165)
[176] Reynolds deposed in his witness statement (Ex. 18, para 22) as to that being lied to, as follows:
“Well at this stage mate I’m paid monthly. I’ve got no idea about what’s going on with the union. No idea. I have never dealt with unions, never been anywhere where they’ve active. I was told there was very little union activity here and in WA the only thing that matters to the blokes you work with is how good of a tradey you are not what piece of paper you sign when you start. Why the fuck would these cunts tell me that there is no union activity when there clearly is fuck this fucken cunt of a joint they have lied to me, a bloke moves from one fucken side of the country to the other on a fucken lie”.
[177] Reynolds also deposed that in saying the foregoing, he had decided beforehand that he would tell Thorpe what Thorpe wanted to hear so that Thorpe would not make life difficult for him. Be that as it may, the foregoing quote from Reynolds statement is the blow up that Thorpe said Reynolds had in the car.
[178] Thorpe was then questioned on a diary note he had made of that night’s interaction between Reynolds (“Kaz”) and himself.
[179] The diary note was produced under summons. The diary note reads: “Worked in pit with Allan King and Steve Scott, and New Starter Kaz. Asked Kaz what deal he was on and he said Company deal but wanted to change to the Union deal, so I will be helping him change and helping him learn the pit.” (Ex. 9)
[180] This diary note confirms that Reynolds and Thorpe had a conversation in the car about the Company deal and the Union deal and union membership. It does not say who initiated the conversation in terms of assisting the Respondent’s submission that the origin of the conversation went back to Thorpe’s demeanour and his long night comment.
[181] However, I draw the inference that the diary note is evidence against the Respondent’s case that Thorpe engaged in intimidation and harassment of Reynolds on the basis that Reynolds was covered by an individual contract and hence not a union member. Thus the Respondent says, per Reynolds, that Reynolds was met by a “sour” face and a refusal by Thorpe to shake Reynold’s hand. Why would Thorpe engage in that alleged conduct? The answer, according to the Respondent’s case, is because Reynolds was not “one of you guys” (PN. 1237) that is, was not a union member and was on an individual contract. But arguably for the Respondent’s case to be made out to explain Thorpe’s initial conduct with Reynolds, the Respondent would need to show that Thorpe already knew before he met Reynolds, that Reynolds was not one of the guys. I am not aware of such evidence being brought forward.
[182] Why would Thorpe record in his diary note that he asked Reynolds what deal he was on, if he already knew? The diary note suggests that Thorpe did not know and therefore had no reason to act in an intimidatory manner to Reynolds (including not shake his hand) when they first met.
[183] It is not possible to determine from the evidence as to who first raised the topics of individual contract - collective agreement - union membership. In any event, the raising of these topics, in themselves, does not constitute intimidation or harassment.
[184] The RFS also relied upon Thorpe’s diary note to put the general proposition that Thorpe treated people differently if they were on the “Company deal”. That submission is based on the word “so” appearing in the diary entry. Thus it was put that the “so” showed a causative thinking process in Thorpe’s approach to persons who were not on the Company deal. That is, when Reynolds indicated he would join the Union and not be on the Company deal, then, per his diary note, Thorpe would help Reynolds learn the pit.
[185] This general proposition of treating people differently, depending on whether a worker was a union member or not or engaged under the collective enterprise agreement or the individual contract, is the proposition being considered by FWA. There needs to be an instance(s), including evidence, of Thorpe putting into practice this causative connection. For example, there needs to be evidence that Thorpe refused to assist a worker and the reason for the refusal is because the worker was not, for example, a union member.
Remainder of shift -‘if you talk to scabs you will be classed and treated as a scab’.
[186] The RFS rely on comments alleged to have been made by Thorpe as further evidence of harassment by Thorpe of (a) Kaz Reynolds (direct harassment); (b) Ben Turner and Craig Link. I will deal with the alleged harassment against Turner below and separate to my consideration of the case put by the Respondent on behalf of Reynolds against Thorpe.
[187] The allegation by Reynolds is that during the remainder of that first shift, Thorpe said the following:
“Fucking scab cunts they are the people that are not in the union. They get to have all our benefit. They get to have our crib times. They get to have a good pay and all the rest of it and that is all the stuff that the union got for us and fought for.
...
Mong and Ben Turner are scabs. Don’t talk to scabs, if you talk to scabs you will be classed and treated as a scab. Blokes like Ben Turner start here as a contractor and only get a job because they take the company’s scab deals and that fucken mong got a job here because he signed the scab deal and he is the kind of retarded fuckwit they want working here he even tried to get one of the brothers Barry Hobbes the sack the spastic cunt.” (Ex. 18, para 25)
[188] The Respondent relies upon a part of the foregoing as evidence of direct harassment of Reynolds. Thus: “...if you talk to scabs you will be classed and treated as a scab.”
[189] Lee Thorpe denied saying the foregoing extract. Thorpe’s recollection was that he off-loaded Reynolds as soon as practical after he was allocated to him because Thorpe was busy with normal duties and showing around a new starter was a burden. Thorpe denied he spent most of his 12 hour shift introducing Reynolds to other workers, as Reynolds claimed. (Ex. 7, para 18)
[190] Thorpe denied calling Craig Link by the name of “Mong” in front of Reynolds or anyone else. (Ex. 7, para 19) The term “Mong” is short for Mongoloid. Link did not give evidence in the proceedings.
[191] The RFS states why the evidence of Reynolds should be preferred over that of Thorpe. (Ex. 31, paras 246 to 252)
[192] One submission going to preference is that Thorpe did not lead evidence from Scott or King to deny the version of events alleged by Reynolds. I am invited by the Respondent to draw an inference against Thorpe for not leading evidence from Scott and King, who are mentioned in Thorpe’s diary note as being present for at least part of that night shift. In regard to drawing an adverse inference against Thorpe for not obtaining evidence from King, I reject. It is the Respondent who carries the burden of proof to put up the evidence to support its decision to summarily dismiss Lee Thorpe. (See my discussion on the application of Payne v Parker above.) The Respondent asked questions of King going to the term “scab” but did not ask King about Reynolds allegation as to what Thorpe allegedly said on that first night shift.
[193] As to Scott, who was not interviewed by the Respondent and hence has no knowledge as to what his evidence might be, then the reasoning in Parker v Payne does not apply. However, in not interviewing Scott, the Respondent has failed to carry out a proper investigation. In failing to interview an employee who was allegedly present as a witness to an allegation by Reynolds and Turner, the Respondent cannot then rely upon that failure to interview all relevant witnesses, to support its position in these proceedings which is that the alleged misconduct took place. The Respondent cannot benefit from its failure.
[194] In any event, I reject this particular submission by the Respondent as to the presence of Scott and King as witnesses to Thorpe’s alleged condemnation of talking to scabs, based on my reading of Reynolds witness statement, which does not support the submission of the Respondent. Reynolds gives an account of meeting Thorpe for the first time. He records the car conversation and at the end of the car ride he records he met Steve Scott. Then Reynolds says Thorpe spent “the rest of the 12 hour shift introducing him to other employees, ... He was talking to me the whole shift ... This included saying words to the following effect: Fucking scab cunts ... Barry Hobbes the sack the spastic cunt.” (Ex. 18, para 25) (emphasis added.)
[195] Reynolds does not state in his witness statement that the alleged conversation (partly quoted above) of harassment was said in front of any witness. He does not suggest that the alleged conversation of harassment was said in front of anyone. He does not say that the B Crew worked chained together all night for twelve hours and therefore anything Thorpe said would be heard by everybody else. There was no evidence that all B Crew employees worked shoulder to shoulder all night long on that particular night. Indeed the evidence of Reynolds suggests that the crew members did not work together on that particular night. The suggestion comes from Reynolds deposing he was introduced to the crew for the rest of the 12 hour shift. That is, the evidence suggests that the B Crew employees worked spread out on that particular night and hence the introductions according to Reynolds took place over a 12 hour period.
[196] I find that there is no evidence in respect of the foregoing alleged Thorpe comments that Scott or King or anyone else was present during the alleged conversation of harassment by Thorpe.
[197] There is a conflict in the evidence between Reynolds and Thorpe as to these alleged scab comments by Thorpe to Reynolds (direct harassment) and against Turner and Link. If there was any witness(es) to these alleged comments, then Reynolds does not name him or them. No witness(es) was/were produced in support of Reynolds allegations. I prefer the evidence of Thorpe who denied the allegations.
Pre-shift discussion, joining the Union
[198] The RFS put that a statement made by Thorpe to Reynolds about joining the Union, was consistent with the events of the previous shift (when Reynolds - Thorpe first met) and of social inclusion/exclusion being used as a tool by Thorpe to pressure employees regarding individual contracts (a non-union mode of employment). Further, a couple of shifts later, Thorpe introduced Reynolds to union delegate, Mr McGregor, and they had a discussion that Reynolds should wait 6 months before advising the Employer that he wanted to terminate his individual contract and be covered by the collective enterprise agreement.
[199] Mr Thorpe did not deny making the statement about joining the Union and introducing Reynolds to McGregor.
[200] I find that this evidence, of itself, is not evidence of a campaign of social inclusion/exclusion in the context of harassment or intimidation of Reynolds or anyone else. If an employee advises that he/she wants to join a union (or indicates an intention to join as Reynolds had already done) then that is his/her choice.
Further threat of isolation
[201] The RFS record Reynolds allegation that he was told by Thorpe that people were only speaking to Reynolds because Reynolds said he would end his individual contract. Thorpe denied having that conversation with Reynolds.
[202] There is a conflict in the evidence between Reynolds and Thorpe on Reynolds allegation. There are no witnesses involved. I prefer the evidence of Thorpe who denied the allegation.
Mr Thorpe harassed Mr Reynolds - Other
[203] The RFS record that Reynolds evidence was that even after he told Thorpe he would join the Union, Thorpe continued to jokingly ridicule Reynolds for being on an individual contract. The RFS deal with this claim under two headings, as set out below.
How are you going scabs
[204] Reynolds witness statement stated that Thorpe had called Reynolds a “scab”. Thorpe denied this claim.
[205] The RFS says that this “scab” issue was raised with Thorpe during the investigation meeting of 8 August 2011. His response is recorded as, “Why would I call him a scab? As far as I know he has never replaced another worker who is on strike!” The RFS submit that this response is a glib and disingenuous comment because the term “scab” has a broader meaning on the mine site than Thorpe’s meaning. The RFS give examples of incidents to show that the term “scab” has a broader meaning. But I find that none of the examples can be attributed to Thorpe in order to show that he used term “scab” and did so with a broader meaning. Thus, the RFS example graffiti on the toilet walls as showing that the term “scab” was given a broader meaning than that used by Thorpe. But there was no evidence that Thorpe was the author of the graffiti in order to show that he used a broader definition of “scab” than the definition he gave during the investigation interview.
[206] During the 11 August 2011 investigation meeting, Thorpe is recorded as saying that he has never used the term “scab”. The RFS put that that Thorpe response is implausible and “reflects badly on Thorpe’s credibility”.
[207] Thorpe described himself as a “committed unionist” because he believed that it is in the best interests of all coal miners to be a member of the Union. (Ex. 7, para 12) The foregoing admission arguably could be used by the Respondent in support of rejecting Thorpe’s allegedly implausible defence. Be that as it may, the other complainant (Turner) against Thorpe did not make any claim of being called a “scab” by Thorpe and there was no evidence other than Reynolds allegation that Thorpe used that term.
[208] There is a conflict in the evidence between Reynolds and Thorpe as to Reynolds allegation. There is no witness(es) to the allegation. I prefer the evidence of Thorpe who denied the allegation.
Lodge meeting comment
[209] The RFS record an allegation by Reynolds that Thorpe called Reynolds, “... a fucken scab ya cunt.” This was allegedly said in front of Sean Logue and Rod Graham. Thorpe denied this allegation.
[210] The RFS assert that Reynolds allegation should be accepted because why would he fabricate this allegation when it would be so easy for his allegation to be challenged by the Union calling Logue and/or Graham.
[211] I reject that ground per se for accepting Reynolds allegation. The Respondent summarily dismissed Thorpe and the onus is on the Respondent to prove its case. The onus was on the Respondent to call Logue in order to prove Reynolds allegation which the Respondent relied upon in part, to summarily dismiss Thorpe. The Respondent had already interviewed Logue and knew of his response to this issue. The failure of the Respondent to call Logue allows me to draw a Jones v Dunkel inference that the evidence of Logue would not have assisted the Respondent’s case that the alleged misconduct (the above comment) had occurred. (See my discussion on the application of Payne v Parker above.)
[212] If the Respondent did not ask Logue any questions about this issue, then the Jones v Dunkel principle does not apply. In that case, where questions were not asked of Logue, then the Respondent has failed to carry out a proper investigation. The Respondent cannot rely upon its failure to ask the relevant questions of Logue, to then say that the Union should have called Logue. This is a shifting of the evidentiary onus. The onus is on the Respondent to prove it had the evidence, on the balance of probabilities, to show that Thorpe had engaged in the alleged conduct.
[213] As to the other witness, Graham, see my previous discussion on the Respondent’s claim that Thorpe should have called Scott as a witness.
[214] Apart from Thorpe denying this allegation, why would Thorpe engage in such language? He was aware of Reynolds intention to join the Union and therefore why would Thorpe insult Reynolds and perhaps drive Reynolds away from the Union given that Reynolds was still engaged on an individual contract?
[215] There is a conflict in the evidence between Reynolds and Thorpe. The alleged witnesses (Logue and Graham) were not brought forth by the Respondent to support Reynolds allegation. I prefer the evidence of Thorpe that he did not make this statement to Reynolds.
Mr Thorpe lied during investigation meetings
[216] The RFS assert that if the evidence of Reynolds is accepted, then it follows that Thorpe lied repeatedly in denying the allegations. That in itself, the RFS said, constituted a valid reason to dismiss Thorpe.
[217] I have not accepted the evidence of Reynolds against Thorpe for the reasoning set out above and/or because of the credit finding made against Reynolds. Accordingly, I do not find that Thorpe lied, let alone repeatedly in denying Reynolds allegations.
TURNER ALLEGATIONS AGAINST THORPE
[218] The allegations by Ben Turner of isolation and harassment against him by Thorpe are set out in the Respondent’s Final Submissions. (Ex. 31, pp. 38-48) I will adopt the format of the layout of the allegations contained in Ex. 31 for assessing the merits of the allegations.
Mr Thorpe ignored Mr Turner
[219] The Respondent said that Thorpe only spoke to Turner on one occasion in the year and a half they were together on B Crew (March 2009 to December 2010). The RFS set out other evidence (ignoring Turner) to establish that Thorpe’s conduct was a deliberate strategy to isolate and harass Turner.
[220] The RFS gives Turners evidence as that he began work in March 2009 and in the first couple of weeks, Thorpe either just ignored him or just grunted “hello”. Thereafter, Turner said, Thorpe would give the “usual stare up and down”.
[221] RFS record the evidence of Reynolds as supporting the evidence of Turner that he was being ignored by Thorpe. Wild and Collyer gave evidence that Thorpe did not speak to Turner during shift starts.
[222] The RFS record that Thorpe gave evidence that he had never spoken to Turner but then gave evidence that he did say hello to Turner “probably a couple of times”. This was a shifting of the story, said the Respondent, and was indicative of not giving truthful evidence.
[223] As to the ignoring issue, there is no compulsion that one worker socialise with another worker at work. An argument can be advanced that it would be courteous for one worker to greet another worker, but it is not compulsory. The fact of the matter is, that some workers don’t hit it off with each other and don’t communicate at a social level but do communicate (perhaps to the bare minimum) in order to get the job done.
[224] What the Respondent needs to prove is that the ignoring (if true) was the result of Thorpe engaging in conduct to harass/bully because Turner was say, not a Union member or was on an individual contract. An employee may talk to another employee and only to the bare minimum to get the job done. Sometimes the reason for this bare minimum contact is a personality conflict. Even if the reason is say ethnic based or religious based, unless that employee declares their reasoning publicly, then no-one can ever know with certainty the reason for the bare minimum contact to get the job done.
[225] In any event, the evidence of Turner is that Thorpe did say hello to him even if, according to Turner, it was a grunted hello.
[226] As to the Respondent’s submission that Thorpe did not give truthful evidence because of his shifting story as to whether he did not did not say hello to Turner, I reject. Thorpe was being asked if he had ever said hello to Turner over a time frame of a year and a half. Presumably he did not keep a diary note for every day in that year and a half as to whether he had greeted Turner or not - in order to give a first up when asked accurate perfect memory response.
[227] The Respondent relies upon the evidence of Wild (Maintenance Supervisor B Crew) and Collyer (Assistant Supervisor B Crew) to confirm Turner’s account that he was not spoken to by Thorpe during the start of the shift. But that evidence is no more than Thorpe was not seen speaking to Turner. Their evidence is not that Thorpe was engaging in bullying or harassing of Turner in not talking to Turner. If Wild or Collyer were of the view that there was something bullying or harassing in Thorpe’s conduct at the start of the shift, then presumably one or both would have said something to Thorpe at that time.
Mr Thorpe deliberately ignored Mr Turner (and told others to do the same).
[228] The RFS put a submission of Thorpe deliberately ignoring Turner. That submission is based on Reynolds evidence that he was told by Thorpe not to talk to Mong (Craig Link) and Ben Turner because they are scabs. Thorpe denied making that statement.
[229] This allegation is made by Reynolds and has already been considered. Where there is a conflict in the evidence between Reynolds and Thorpe and there is no witness(es) to support Reynolds, then I prefer the evidence of Thorpe. Accordingly, this allegation is rejected.
[230] The RFS refer to another alleged incident under this heading of deliberately ignoring Turner. This is the Brady Borg incident. Turner gave evidence that he was talking to Brady Borg “in 2010”. Whilst conversing, Thorpe allegedly walked by and said, “G’day Brady. Why are you always talking to your contractor mates?” Thorpe allegedly gave Turner a “look up and down” and a ‘disgusted look and then walked off.”
[231] The RFS record that Thorpe said in his reply statement that he could not recall the above conversation but positively denied that the conversation took place, under cross-examination. This showed inconsistency by Thorpe in his evidence and therefore the account of Turner should be preferred.
[232] The transcript references given by the Respondent, do not show that Thorpe was challenged that his evidence was inconsistent. Further, my observation of Thorpe in the witness box did not cause me to consider the alleged shifting of evidence to be an issue for this allegation and the hello “shifting story” above.
[233] The RFS also said, on this point, that Thorpe did not call Borg to give evidence and there was no evidence that he was not available to give evidence in court. I reject that the onus was on Thorpe to call Borg. There was no evidence that Borg had been interviewed by the Respondent and so his knowledge on this issue is unknown to the Respondent. The reasoning in Payne v Parker only applies if a party knew what a potential witness knew and failed to call that person. There was no evidence that the Respondent knew what evidence Borg had on this issue. However, for my reasoning set out above about the potential witnesses (Scott and Graham), I find that the Respondent cannot rely upon its failure to interview Borg in order to support its case that the alleged misconduct occurred.
[234] Finally, under the heading of “deliberately ignored Turner”, is the one only conversation (apart from the alleged grunted hellos) between Turner and Thorpe.
[235] As to the one only conversation, this occurred when Thorpe spoke to Turner allegedly trying to convince Turner not to sign an individual contract in/around September 2010. Thorpe does not deny that he only had one conversation with Turner. That conversation occurred around September 2010, when Turner was successful in becoming a permanent employee (he had been a contractor from March 2009 when he started at the mine site) and that would require a decision on his part as to whether to be engaged on an individual contract or the collective enterprise agreement. According to Turner, their one only conversation was to the following effect:
“Mr Thorpe: Have you got a few minutes, can we have a chat?
Me: What are the issues. I can’t talk right now, Perry needs me.
Mr Thorpe: Have you decided which way you are going?
Me: I don’t understand the question.
Mr Thorpe: Which way are you going?
Me: What? Going home?
Mr Thorpe: You know the contract type I don’t want you to go the wrong way. We get a lot of discounts.
Me: I don’t feel comfortable talking about this at work. I won’t be making a decision on who is going to be my friend and who is not, you have never made any effort to say hello to me. I don’t know what has changed now but you are not going to be my mate now.
Mr Thorpe: So that is how it is going to be
Me: Yeah. ”
[236] The RFS then make two points about the above conversation. Firstly, it is an example of harassment. Secondly, if it is not accepted as harassment, then it is evidence of Thorpe “subsequently engaging in a campaign of isolation against Mr Turner regarding this issue.” (RFS at para. 189) (FWA emphasis added)
[237] As to the harassment submission, the RFS extract the definition of harassment from the Respondent’s “Workplace Diversity, Harassment & Equal Opportunity Policy”. (Ex. 26, page 13) The definition reads:
“Harassment includes any unwelcome advance or request, offensive comment or action that offends, humiliates or intimidates or may reasonably be expected to do so and/or includes bullying.”
[238] The RFS put a submission that the conversation shows that Thorpe wants Turner to make a certain decision and if Turner does not agree, then there is an implicit threat that Turner’s isolation will continue. Support for that submission was Turner’s evidence that he felt intimidated and pressured by the approach from Thorpe.
[239] I note that Turner’s evidence was that he had “the impression I got it was just pressure to put me into joining the Union ... Well, I felt a bit intimidated. All of a sudden they want to talk to me when they never did before.”
[240] I find that the Turner-Thorpe conversation is not evidence of harassment. If there had been one or more approaches beforehand by Thorpe about joining the Union and Turner had expressly made it clear he did not want any further discussion on the matter, and Thorpe (or anyone else) pursued the Union membership issue subsequently, then a case might be made out for harassment. But given that this is the first time Turner and Thorpe have spoken, then how can there be harassment? The Respondent’s answer to that question is that Turner was being isolated by Thorpe who had been allegedly ignoring Turner. As to that answer, I have already stated that it is not compulsory for one worker to socialise with another worker at work. There is a requirement to communicate in order to get the job done. The persons in authority (Wild and Collyer) observed that Thorpe did not speak to Turner but took that observation no further. Perhaps because it is not compulsory for all workers to socialise with each other at work. The fact of the matter is, that not all workers see eye to eye, for whatever reason. The Respondent needs to show that there is something else at play.
[241] As to Turner feeling “a bit intimidated”, that contrasts with his version of the conversation in which he decisively tells Thorpe “you are not going to be my mate now.” Under cross-examination, he agreed that he “rebuffed” Thorpe and was “effectively telling him to go away.” (PN 4456-4458)
[242] The Respondent’s claim above that “subsequently” Thorpe engaged in a campaign of isolation against Turner over this issue is rejected. The evidence arguably shows that Turner decided upon the future relationship between the two of them and it was one of isolation by him against Thorpe (“you are not going to be my mate now”).
Conclusion on Valid Reason for Dismissal
[243] Having considered all of the evidence, and for the reasoning set out above, I find that the Respondent has not discharged its onus of establishing that there was a valid reason for the dismissal of the Applicant.
(b) whether the person was notified of that reason
[244] The Applicant was notified of the reason for dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[245] The reason for summary dismissal went to conduct only.
[246] Mr Bukarica submitted that there was a denial of procedural fairness because the Applicants were stood down and only knew that unspecified allegations of intimidation and harassment had been made by Reynolds. That is, the Applicants were not given particulars on the day of their stand down (Thursday, 4 August), nor before their first investigation interview of Friday 5 August or Monday, 8 August. This lack of specifics, said Mr Bukarica, denied the Applicants the opportunity to marshall corroborative evidence in their defence.
[247] Similarly, the Union argued lack of procedural fairness for the Applicants to prepare their defence against the Show Cause letter. Thus, a second investigation interview was held on Thursday, 11 August. Arising out of that meeting, the Applicants were given Show Cause letters and were required to respond by the next day Friday, 12 August. Following that Show Cause meeting, the Applicants were summarily dismissed.
[248] FWA has issues about the investigation process. It had the look of a rush to judgement.
[249] Firstly, was the quickness with which the investigatory process took place. Thus, the Applicants were stood down on the Thursday, 4 August. The first interview took place on Friday, 5 August. The three Applicants (and another two employees, Logue and Boyd) were interviewed on Monday, 8 August. Those interviews were in consequence of the Reynolds allegations only which were set down on paper on the prior Thursday, 4 August.
[250] Turner’s allegations were not put down on paper until Tuesday, 9 August. (Ex. 26, GH-13)
[251] The Applicants (and Logue/Boyd) were interviewed again on Thursday, 11 August. The allegations of Turner were then raised with two of the three Applicants. At the conclusion of their respective meetings, the three Applicants were given their Show Cause letters. (Ex. 26, para. 40) There was no delay of a day or so by Holland to reflect upon the large number of allegations and responses. Further, the responses to Turner’s allegations were being given on the same day as the Show Cause letters were given to the Applicants.
[252] Secondly, the rush to judgement look arises from Holland’s consideration (that is, it would appear, no consideration), of King’s defence to Reynolds allegation that he is a storyteller. King raised this defence/allegation at the first interview (Monday, 8 August). It was not a bald assertion. He gave examples including the Anthony Mundine story. (Ex. 26, GH-7, page 73) The consequence of that defence went not only to the veracity of Reynolds allegations but as well, in part, to Turner’s allegations. This is so, because the Respondent relied upon Reynolds as a witness to back up one or more of Turner’s allegations.
[253] When Holland interviewed Reynolds on 4 July, Reynolds told Holland that he told tall stories. (PN 7148) Then Holland was informed by King that King knew of these storytellings and was raising it as a defence. I appreciate that Holland did not have in front of him at that time a witness statement from Reynolds saying that he was now telling the truth about the Mundine story but in reality he was not and which would have alerted Holland that there was a credit issue with Reynolds. But what was done by Holland to check out King’s defence?
[254] Still on this point, what happened after the interviews of the six stood down employees? For example, when say Thorpe denied allegations of Reynolds (and he was the only person making allegations at the time of the first interview), did Holland go back to Reynolds and put Thorpe’s responses to him for responses? If Holland did so, where is the minutes of that meeting? Seems to me that given the seriousness of the allegations and their consequence, and the industrial relations environment, that Holland would want to protect himself from any claim of bias by producing the minutes of say that Holland/Reynolds interview as to Thorpe’s responses.
[255] Thirdly, there are the interviews of Harris. The first interview (on Monday) ended with Holland telling Harris to “fuck off”. That occurred after Holland formed the view that Harris had lied to him twice about whether Harris had been in contact with the other stood- down employees subsequent to their stand-down. But he was not accused of lying in respect of his responses to Reynolds allegations.
[256] The second interview took place on the Thursday. No allegations were raised by Turner against Harris. But after Harris filed his unfair dismissal application, then there were allegations by Turner against Harris. How can that be? Turner put his allegations in writing on Tuesday, the day after the first interview. Under the heading of “Brett Harris”, Turner said: “Brett hasn’t done anything that Ben can identify.” (Ex. 26, GH-13, page 101) Does that say something about the investigation process?
[257] The minutes of the second interview of Harris (Ex. 26, GH-11, page 91) is one page only in length. A reading of that brief meeting shows questioning by the interviewing officers that focuses on the “lies” told by Harris as to whether he had been in contact with any of the stood-down employees. There is virtually no focus on Reynolds allegations.
[258] It is only at the end of the typed notes of the meeting, that a question going to Reynolds allegations is asked but in the context of his “lies”. Steve Jackson is recorded as asking: “What about the bottle of gas, spud gun and logging onto Craig’s IT? Why would we believe what you are saying on the other allegations?” Harris’ response, if any, is not recorded. The next entry is “Meeting Terminated - Show Cause letter issued ...”
[259] The foregoing question shows that the interviewing officers were focussing on the “lies” and not on Reynolds allegations. In the first interview (Monday), Harris gave a response about the missing gas bottle. He told the same interviewing officers that “Chris Giddins told me that he told Perry and Nathan as far as I was aware.” (Ex. 26, GH-9, page 79) Thus, Harris was saying that two supervisory personnel (Wild and Collyer) knew that the gas bottle had been stored in Harris’ locker, before it went missing. Did Holland check with Wild and Collyer if this claim was true? The significance of this question goes to the belated claim of the Respondent that Harris had stolen the gas bottle. Without exploring all of the evidence at this point, why would Harris steal a bottle of gas when he is saying that he understood that his two bosses (Wild and Collyer) knew he had the gas bottle stored in his private locker? It would seem that Harris’ defence, to Reynolds allegation of theft by Harris of the gas bottle, was not checked out between the first and second interviews. It indicates a rush to judgement. If it was checked out and found to be incorrect, why was this not put to Harris at the second interview?
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[260] The applicant was represented by his union official.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal.
[261] This factor has no relevance as performance was not an issue.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[262] This factor was not an issue.
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[263] This was not an issue.
(h) any other matters that FWA considers relevant
[264] Thorpe had been an employee of the Respondent for nearly seven (7) years. He deposed he had never been the subject of a formal written warning in relation to his work performance; had never returned a positive drug or alcohol test and had never been counselled about absenteeism or being late for work. (Ex. 6, paras. 6-7)
CONCLUSION
[265] The Applicant was summarily dismissed by the Employer by letter of 12 August 2011. That summary dismissal followed a suspension of the Applicant and an investigation into the allegations of harassment and intimidation made by Reynolds and Turner.
[266] Given that the dismissal was summary, the Respondent carried the onus of establishing on the balance of probabilities, that the Applicant had engaged in the conduct alleged by Reynolds and Turner.
[267] Fair Work Australia considered the Applicant’s claim that he had been unfairly dismissed by considering the factors set out in section 387.
[268] After deliberating on the evidence, Fair Work Australia found that there was not a valid reason for the dismissal of the Applicant. Taking into account all of the evidence and requirements of the Act, I find that the summary dismissal of the Applicant was unjust: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465.
REMEDY
[269] The relevant sections of the Act in relation to the remedy of reinstatement sought by the applicant are:
“390 When FWA may order remedy for unfair dismissal
1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
b) The person has been unfairly dismissed (see Division 3).
2) FWA may make the order only if the person has made an application under section 394.
3) FWA must not order the payment of compensation to the person unless:
a) FWA is satisfied that reinstatement of the person is inappropriate; and
b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as application for remedies.
391 Remedy – reinstatement etc.
Reinstatement
1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
a) Reappointing the person to the position in which the person was employed immediately before the dismissal; or
b) Appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
a) The position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
b) That position, or an equivalent position, is a position with an associated entity of the employer;
The order under subsection (1) may be an order to the associated entity to:
c) Appoint the person to the position in which the person was employed immediately before the dismissal; or
d) Appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
a) The continuity of the person’s employment;
b) The period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
a) The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
b) The amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[270] As to the foregoing statutory criteria, I am satisfied that: the Applicant was protected from unfair dismissal at the time of being dismissed: s.390(1)(a); that the Applicant was unfairly dismissed: s.390(1)(b); and that the Applicant had made an unfair dismissal application: s.390(2).
[271] The Applicant seeks reinstatement. I am satisfied that reinstatement is appropriate given the circumstances of the case, and my consideration of the practicability of reinstatement raised by the Respondent. The order for reinstatement is to be to the position occupied by the Applicant immediately prior to his summary dismissal: s.391(1)(a).
[272] It is appropriate that I make an order to restore lost pay: s.391(3). During final submissions, the advocates agreed to confer and work out amongst themselves the monetary impact of this order given that Thorpe has been earning other remuneration since his summary dismissal and such remuneration would need to be deducted from the remuneration he would have received had he not been summarily dismissed from his employment.
[273] I consider that there should be an order to maintain the Applicant’s continuity of service with the Respondent: s.391(2).
COMMISSIONER
Appearances:
M A Bukarica and Mr Thomas of the CFMEU for Thorpe
Mr A Longland and Mr Young, solicitors, for the Respondent
Hearing details:
2012
Newcastle
March 26, 27, 28, 29 & 30
May 29
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<Price code G, PR526919>
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