Mr Mark Oastler v McConnell Dowell Constructors (Aust) Pty Ltd T/A MacDow Geosea Joint Venture - [2013] FWC 6043

[2013] FWC 6043

FAIR WORK COMMISSION

DECISION

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

Mr Mark Oastler
v
McConnell Dowell Constructors (Aust) Pty Ltd T/A MacDow Geosea Joint Venture
(U2012/17059)

COMMISSIONER SIMPSON

BRISBANE, 11 SEPTEMBER 2013

Termination of employment - Termination justified on basis of misconduct - Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mark Oastler (“the Applicant”) who alleges that the termination of his employment with McConnell Dowell Constructors (Aust) Pty Ltd T/A MacDow Geosea Joint Venture (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 20 December 2012 and conciliation conferences were not successful in resolving the matter. Directions were sent out for the matter to be heard in Mackay on 27 and 28 August 2013. At the hearing the Applicant was represented by Mr O’Brien of the Construction, Forestry, Mining and Energy Union (CFMEU) and the Respondent by Mr Power of Drayton’s Workplace Consulting Pty Ltd who was granted permission to appear. 1 The Applicant made clear the remedy sought was not reinstatement but compensation.2

[3] The Applicant was employed by the Respondent as a crane driver on 22 February 2012 at Hay Point and dismissed on 13 December 2012. His period of employment was approximately 9 and a-half months. He agreed he worked in the same area on the project in that time. His normal duties were to operate a 250 tonne Kobelco crane. He said at all times he held an open crane license. The Applicant provided a signed 7 page statement which included that he relied upon Bechtel for transport to and from work and standard working hours were from 6.30am to 5.00pm. There are 5 buses that arrive to collect workers at the end of the day. He said two buses would pass the stop nearest his workplace, before he and co-workers could finish work and walk up the hill to the bus stop. He said the remaining buses would wait at the end of the route for some time and eventually come past his stop to collect him and others, but he would leave work quite late. 3

[4] The Applicant said the buses had been an issue for months. He said he had spoken out about it to his superintendent Joe Clarke, the Project Manager Sam Kapetanas, and Bechtel representatives. It was Superintendent for Logistics Clarke’s evidence he had worked in the construction industry for 11 or 12 years and had a diploma in management, certificate IV in assessment and was qualified to operate dozers, loaders, cranes and other machinery. Clarke said the Applicant had been the raising an issue concerning the buses for 6 months and it was a daily topic. Clarke said nobody else had a problem with the issue except the Applicant and he wouldn’t let go of it. He said the Applicant was raising the issue on his own behalf. Peter Baker, a Supervisor of Bechtel also gave evidence that the Applicant would raise the issue of buses most morning at prestart meetings. 4

[5] The Applicants issue concerning the buses was that even though the employees were paid up until 5pm, the Applicant wanted the bus to arrive at the stop at 4.45pm so that he did not have to wait for an extended period. He agreed he was working in the vicinity of the Rec area at the time of his termination. 5 He said by the time the bus had collected employees and transported them from the rec area to the car park it was 5 o’clock.6 The Applicant later said the employees were getting back to the car park at 5.05pm or sometimes 5.10pm. He seemed to accept the bus picked up employees at 4.50pm.7

[6] The Applicant said the distance from the Rec area to the car park was four or five kilometres. When it was put to him the distance was two kilometres he said he didn’t know. 8 He agreed that the bus, after collecting employees from the Rec area travelled about 600 metres where a Bechtel employee would board the bus and use a hand held swipe device for employees to swipe off.9 Mr Clarke for the Respondent said the distance from the Rec area to the car park was approximately 1.8km, and it took the bus 4 to 5 minutes to travel that distance. He claimed the bus normally arrived at the car park between 4.45 and 4.55pm and rarely arrived after 5pm.10 Mr Jenkins, a leading hand on the project said he thought the distance was 2km, and it took about 5 minutes to travel the distance.11

[7] Under cross examination Ms Larsen the Human Resources Manager was asked if she had investigated whether or not buses got employees off the project by 5pm. She said she didn’t have to because Bechtel had been running those types of testing with the buses, checking entry and exit times since the project commenced and the buses were getting people to the car park at 5pm. 12

[8] The Applicant said he complained on behalf of himself and co-workers that he was waiting so long to go home at the end of the day, and he suggested that rather than separate buses go to separate stops in the larger work area, one of the other buses could stop to pick them up. He said he pointed out that empty or near empty buses were going past them. 13

Events of Wednesday 28 November 2012

[9] Joe Clarke gave evidence that between 8am and 8.30am on Wednesday 28 November 2012 the Applicant entered his office with an unsettled look on his face. Clarke said he asked what he could do to help the Applicant and he claimed the Applicant said he wanted to talk about the buses. Clarke claimed the Applicant requested a bus especially to pick him up at 4.45pm. Clarke claimed he said to the Applicant that he had been told numerous times that the scheduling of buses is run by Bechtel, the times will not change and due to the growing size of the workforce on-site this is the logical way to do it. 14 Clarke claimed the Applicant began to get more agitated and angry and said; “listen mate, if I don’t have a fucking bus to start picking me up right here (pointing toward the door) then there’s gunna be fucking trouble.” 15 Joe Clarke then claims he said to the Applicant; “What is it mate? You live over the road, you get paid an hour travel...you know you’d have a six pack in your stomach before I’d even set foot on my driveway.”

[10] Clarke said the Applicant laughed at that and said “I don’t give a fuck, that’s not the point.” 16Clarke claimed the Applicant then proceeded to explain that he would just leave the job if there was not a bus provided to take him home at 4.45pm. Clarke claimed he replied to this by saying; “you better be fucking kidding me mate. Don’t you shut your crane down and leave site mate.” Clarke claims the Applicant then left his office saying “yeah, yeah, yeah.” In oral evidence Clarke claims he told the Applicant in that conversation that he could not just leave the job when he felt like it,17 although this did not appear in his witness statement.

[11] Clarke confirmed in his oral evidence that the Applicant had been raising the issue for months but indicated it was on his own behalf and not other employees. Clarke appeared from his evidence to be unable to understand why the Applicant was raising the issue when he was paid until 5pm. Clarke described the issue as being “ludicrous”. He said he did not know why the Applicant wanted his own bus to leave at quarter to five. 18

[12] The Applicant flatly denied in oral evidence that this conversation occurred on 28 November. 19 20 He also denied there had ever been a conversation regarding him having a six pack in his stomach before he set foot in his drive way.21

[13] The Applicant did agree however he told Clarke he would be leaving the job if a bus was not provided at 4.45pm, but that the conversation was on Thursday not Wednesday and it occurred between the first and second break on Thursday. 22 He did not accept a version of the conversation along the lines of what was claimed by Clarke, instead saying Clarke said words to the effect of “you must have been hit by a bus when you were a kid.”23When asked why he thought Clarke responded that way he said he thought he was just having a joke with him.

[14] The Applicant in his statement said it was on Thursday 29 November 2012 between the first and second break he spoke to superintendent Clarke and said words to the effect: “You’ll have to dock me half and hour today as I am going up the hill at 4.30pm.” He said what he meant by this, and what he is certain Joe Clarke would have understood from this given all of their previous discussions was that he wanted to catch the bus that passed the closest bus stop at 5.00pm. He said Joe Clarke laughed and said words to the effect: “We’re you hit by a bus when you were younger or something.”

Events of Thursday 29 November 2012

[15] Joe Clarke claimed that at the pre-start meeting on the next morning of 29 November he asked if there any issues or concerns. He said the Applicant raised that he wanted the bus to come earlier and pick him up to which Clarke said he said he advised; “No that’s not going to happen as Bechtel and the Project Manager Sam Kapentanas have communicated the times, and the buses are scheduled to run to those times.”

[16] The Applicant said in oral evidence Clarke might have raised the issues of the buses at the pre-start meeting. 24 When asked if Clarke was at the pre-start on the Thursday morning the Applicant responded probably would have been yes. The Applicant said he did not recall Clarke saying that the buses were not going to change as Bechtel coordinates buses.25

[17] Bryon Jenkins supported Clarke’s evidence by saying that the Applicant raised the issue about buses again. 26 Clarke claims that the Applicant was agitated at the pre-start meeting and started to raise his voice, demanding that the bus pick him up at 4.45pm and not 4.50pm. Clarke said he again advised the Applicant this was not possible as the bus timetable was set and was a directive from Bechtel and the Project Manager. Clarke said he repeated this numerous times as the Applicant became more aggressive and then ignored him regarding his continuing demands about the buses and ended the prestart meeting.

[18] Bryon Jenkins claimed that after the meeting the Applicant said to him; “If the buses aren’t fixed I will walking off this afternoon at 4.30pm.” Jenkins claimed when he heard this he did not take it seriously. 27 The Applicant denied during his oral evidence saying anything about the buses until talking to Clarke between first and second break.28

[19] As stated above the Applicant placed his conversation with Clarke concerning the buses as being on Thursday 29 November 2012 between the first and second break where he admitted saying words to the following effect: “You’ll have to dock me half and hour today as I am going up the hill at 4.30pm.” 29 30

[20] The Applicant said at 4.30pm he did begin to leave work. In oral evidence he accepted that he turned off his crane at 4.20pm and then left the site. 31 In his oral evidence he agreed the crew on the crane that day was himself operating the crane, Bryon Jenkins as leading hand, Shaun Renwick as rigger and Doug whose nickname was “possum”. He agreed his function was to unload the trucks and to load material onto the SPMT. 32

[21] He said the leading hand Bryon Jenkins called him on his mobile phone and said words to the effect: “I’ll have to advise Clarky you’re leaving.” His said he replied: “No worries, I have already let Clarky know and I will call him again to let him know I’m doing it. I’ll tell him to dock me half an hour.” 33When asked who was aware he was leaving the Applicant said Clarke was, because he told him earlier that day between first and second break, and confirmed his view that Clarke’s only34 response was to make a comment concerning him being hit by a bus when he was a kid. When it was put to the Applicant that no-one had approved his leaving site early he responded that no-one told him not to leave.35

[22] Bryon Jenkins version was different. He said that afternoon he noticed the crane had been shut down, the rigging gear was on the ground and the crew were just standing around. He said when he looked around he noticed the Applicant walking off up the hill. This is consistent with the Applicants evidence that he walked up the hill to the main gate. 36

[23] Jenkins said he called the Applicant to come back to work and that he would have to ring Joe Clarke. The Applicant agreed Jenkins rang him. Jenkins said in oral evidence his comment to the Applicant was “You do what you’ve got to do.” 37 He said the Applicant said that he would ring Joe Clarke himself. The Applicant said he walked up the hill to the main gate which took him 10 to 15 minutes. It was put to him that this was a vehicle access area only. The Applicant responded that there was dedicated access across the bridge. He said he didn’t know if it was vehicle access only, but that he was walking between the guard rail and the kerb. In his oral evidence he said he told Jenkins when Jenkins called him, “You can ring Clarkey mate, because Clarkey already knows about it.” He said he let Clarke know once he got to the top when he got out of the car park. He said he rang Clarke at 4.40pm after he left site and said “Joe, I’ve just left site; just letting you know.” 38and Joe Clarke said words to the effect of: “Mate you could have gone a better way about it.” The Applicant said he replied by saying: “Yeah well.”

[24] Clarke said that later on that afternoon on his arrival at home he received a phone call from his leading hand Bryon Jenkins advising the Applicant had shut his crane down at 4.20pm and said he was going home. Clarke said Jenkins claimed to him he had asked the Applicant to continue working in the crane as the day was almost finished but that the Applicant refused and walked off.

[25] Joe Clarke’s version of the call is that the Applicant rang him and said he was “going home.” Clarke said he asked the Applicant where he was and the Applicant replied; “walking across the bridge to get the bus.” Clarke said he asked the Applicant whether he was joking, to which the Applicant replied he was serious. Clarke claims he said to the Applicant; “You mean to tell me that you have shut down a 250 ton crane and left 3-4 crew members standing there.” To which the Applicant replied; “Yep.” 39 The Applicant denied in oral evidence that Clarke made this statement to him.40 Clarke claimed to have said in the phone conversation with the Applicant “Well, mate, you know it’s not the correct thing to do, you know. So you’ve shut your crane down and you’ve left your work colleagues there,” and went on to say they would discuss it in the morning.41

[26] Clarke claims he then asked the Applicant why he did it and claims the Applicant stated that he was sick of the buses not coming earlier. Clarke claims he then told the Applicant they would talk about it in the morning. Clarke said the Applicant did not raise any safety concerns. 42 It was the Applicants evidence that the conversation more or less ended after Clarke said to him that he could have gone about things a different way and Clarke said no more than that.43

Events of Friday 30 November 2012

[27] Clarke claimed that at the pre-start the next morning he again asked if there were any issues or concerns and the Applicant again raised why the buses couldn’t come and collect him at 4.45pm. Clarke said that the Project Manager Sam Kapetanas was in attendance at the meeting and explained that the buses had a schedule to run and the buses picked up at 4.50pm. Clarke said that Kapetanas explained that there would be no change to the schedule and that the Project pays employees until 5.00pm, and employees were already finishing 10 minutes earlier in Company time. Clark claimed the Applicant persisted and that buses at half tide left at 4.45pm to which he said Mr Kapetanas advised he was unaware of this and would put a stop to it. Clarke said he then ended the meeting. 44 Bryon Jenkins evidence was generally consistent with Clarke’s account of the meeting.45 The Applicant accepted in his oral evidence that he had raised the matter of the buses with Mr Kapetanas at the pre-start meeting and also accepted that Mr Kapetanas said that there would be no change to the schedule and that the project pays until 5pm.46

[28] Bryon Jenkins gave evidence that immediately following this meeting the Applicant said to him that he was going to; “go slow all day” and he “didn’t give a shit what anyone had to say.” Jenkins claimed the Applicant kept saying this and said to him heaps of times during the day that he was going to go slow. Jenkins claimed that numerous times he walked past the Applicant and wasn’t even going to speak to him when the Applicant would remark; “I am going slow and there is nothing you can do about it.” 47 The Applicant denied in oral evidence saying to Jenkins he would be going slow all day or that it was because of the buses.48 49 It was put to Jenkins that if the Applicant had told him at the beginning of the day that he was going to go slow all day then why did he let the Applicant drive the crane. He replied that he was new to that kind of area and he had no intention of pulling him out of the crane.50 He went on to say he didn’t know how to handle himself at that point in time. Jenkins said he didn’t know where it was leading but he just thought the Applicant had a bee in his bonnet and was going to get over it.51

[29] The Applicant gave evidence that the crew on the crane was the same as the day before being himself, Jenkins, Renwick and Doug “possum”, who Jenkins said later was Doug Arnold. 52 53 When asked in oral evidence if he was going slow that day the Applicant said he was going “steadier than usual because a couple of heads that were popping up over our slew area and because of inexperienced riggers and that. I had to slow right down and make sure that they got those people out of the way so we could continue doing our work”.54 He agreed Shaun Renick was an experienced rigger who was “up on top”. He said “Jenko” and “Possum” were down the bottom. Jenkins agreed he only got his dogman’s ticket on that day.55 Jenkins said that day Renwick was the ‘rigger’ he was the ‘dogman’, and Arnold the TA when the Applicant was driving the crane.56 Jenkins said he was acting as leading hand on the day. He agreed he was not an experienced dogman at that time.57 McCreedy agreed a more experienced dogman generally makes a crane operator’s job easier.58

[30] The Applicant denied that in the second break 5 trucks were waiting to be unpacked. 59 He said 2 trucks turned up when he was walking away.60 He denied having the crane in idle all day except on the actual lift. When asked if he had ever raised his claimed safety concerns he said he “..went to raise it..”, but “..was told that they had problems with me and that’s when I turned around and said, We’ll, in that case I’d just like to see the Union, thank you.” He clarified that this was on the next day being the Saturday, not the day itself.61

[31] Jenkins said in his statement he called Joe Clarke for assistance in dealing with the Applicants behaviour regarding his slow work rate that he claimed had created a backlog of trucks. Jenkins said Clarke advised him to replace the Applicant with another driver, Tony Dridan. 62 In oral evidence Jenkins said in fact he had spoken to Clarke numerous times throughout the day including about the back up of trucks and said Clarke told him he knew all about it.63 Jenkins said he had “Neil” from the trucking company waving his hands up in the air. Jenkins said he spoke to Clarke about the truck driver shaking his hands in the air.64

[32] Joe Clarke said in oral evidence he could see trucks building up. 65 He said later on that morning he received a phone call from Jenkins advising that the Applicant had been working very slow all day and not doing much work, which created a backlog of trucks with deliveries. Clarke said Jenkins told him the Applicant was on a go slow.66 Clarke said he advised Jenkins to swap the Applicant for another employee Tony Dridan to which Jenkins agreed.67

[33] In oral evidence Jenkins claimed he said to the Applicant “Mark, can you, please, help me out and help me get these trucks unloaded, mate.” He also claim he said to the Applicant, “Your making me look bad.” Jenkins said the Applicant replied, “So, I’m just going to keep going slow.” Jenkins claimed he replied, “Well, you leave me no option, Mark. I’m going to have to swap you out.” 68 The words Jenkins claimed he said varied slightly in later evidence. He claimed the Applicants response was simply to say “Yeah, fine, swap me out.” Jenkins claimed he responded by saying “I’m just trying to get the job done, mate.”69 Jenkins evidence is consistent with the evidence of what McCreedy said Jenkins told him on the day. McCreedy said Jenkins told him he had made a request of the Applicant to help him out that afternoon and McCreedy claimed Jenkins told him the Applicant said “no.”70 McCreedy’s evidence concerning what Jenkins said to him on the afternoon of the event was otherwise consistent with the version Jenkins gave himself.71

[34] The Applicant’s version is at odds with the evidence of Jenkins. He said during the second meal break while sitting with his work colleagues Bryon Jenkins the leading hand said to him words to the following effect: “Are you going to go any fucking faster in that crane?” The Applicant said he replied by saying; “No I am not going to go any faster...” The Applicant said that before he could say any more, Jenkins pointed his finger at him and said words to the following effect: “You’re out and Tony you’re in...” pointing to his co-worker Tony. 72

[35] The Applicant said he did not believe he should operate the crane any faster for reasons of workplace health and safety. He said there were a lot of inexperienced dogman and riggers in the area so he believed it was necessary to work at the pace that he was working at. He gave as an example that Jenkins had only received his dogging ticket around four weeks earlier and had completed his VOC that very morning. The Applicant said in his opinion Jenkins would not have a clue about what rate of work in the crane he should be operating. 73

[36] The Applicant said he became quite stressed thinking about what had just occurred. He said he and other operators had rarely talked to Jenkins about the fact that they had inexperienced riggers and doggers working with them. He said they had discussed this lack of experience and skill as a safety issue for their workplace. 74 No other evidence was called for the Applicants case to support this claim.

[37] He said due to his rising frustration and stress about the issue he decided he should leave the site. He gave evidence that he said to Bryon Jenkins words to the following effect;

“I’m going home, this is bullshit. I’m stressed and I need to leave.” 75 In oral evidence his version was as follows;

PN 187 What happened after that?---I said, "That's a load of" – he said, "Are you going to go any faster?" I said, "No." He goes, "Well, you're out. Tony, you're in," and I've just sat there and just gone, "Just like that," and I said, "Fair enough." I took Tony into the crane, showed him all the lift studies and everything worked and grabbed my gear and I – and I said to Jenko, "I'm going home." I said, "I just can't handle this. I'm out of here," and he's – and he just, "Yeah, okay."

[38] Further in oral evidence he said;

PN 193 So what did you say to Mr Jenkins?---I said, "This is bullshit, mate. I'm going home. I'm all stressed out now because you reckon I'm going too slow." I said, "What about all the near miss – the near miss we had there previously with the blokes, you know, popping their heads up in between the bridge beams and all that?" and he just shrugged his shoulders.

[39] The Applicants oral evidence is inconsistent with his witness statement concerning what he claims to have said to Jenkins. The witness statement makes no mention of him raising safety issues with Jenkins, only that he was stressed and needed to leave.

[40] He claimed in oral evidence he tried to contact Clarke. He said that had he been able to speak to Joe Clarke he would have spoken to him instead of Jenkins but that Clarke was in a meeting. He said that Jenkins did not tell him not to leave.

[41] Joe Clarke said he drove to the offices of the reclamation yard at approximately 2.45pm that afternoon to talk to the Applicant and provide him a written warning for leaving the site without the approval on the previous day. Clarke said when he arrived he saw the Applicant getting on one of the buses. He said he spoke to Neil Whitworth from McAleese Transport who advised that the Applicant had left his crane, walked off and got on a bus. Clarke said that at no stage on that day did the Applicant seek approval for leaving site, or raise any safety concerns with Clarke. 76

[42] Keith McCreedy as General Superintendent for the project gave evidence that he had some 45 years experience in the construction industry including as a carpenter, crane and machine operator. 77 He said that on Friday morning 30 November 2012 he became aware of an incident involving a crane operator who left early the previous day.

[43] McCreedy said he spoke to Joe Clarke who informed him that he had spoken to Sharyn Larsen the Human Resources Manager, and he intended to issue a written warning to the Applicant that day. McCreedy said Clarke asked him if he would be present. He claimed he said to Clarke he would catch up with him at the lunchtime meeting and that they would issue the written warning to the Applicant after the meeting. 78 McCreedy said that at approximately 3pm on 30 November 2012 Clarke called him to say not to bother coming down to talk to the Applicant as he had again decided to leave the site, this time at the lunch break.79

[44] McCreedy said he then caught up with Joe Clarke and was advised about issues Jenkins had with the Applicant during that day. McCreedy said he advised Clarke they would catch up with the Applicant on Saturday morning to deal with the issues and serve him a written warning. 80 81

Events of Evening of Friday 30 November 2012

[45] Jenkins gave evidence that at approximately 7.05pm he received a phone call at home from another crew member advising him that the Applicant had contacted ‘the unions’ about him. Jenkins said after a brief conversation with this employee he attempted to contact the Applicant at approximately 7.15pm to determine why he contacted ‘the unions’ about him. This evidence is generally consistent with the Applicants own evidence except the Applicant said it was about 8.20pm on the evening of 30 November that he missed a call on his mobile from Bryon Jenkins as he was putting his children to bed.

[46] The Applicant said he returned the call and it went straight to Jenkins message bank. He said he did not leave a message and then went to bed. He said Jenkins rang again at approximately 8.45pm when he was in bed. He said he was unable to get to the phone in time. The Applicant said he returned the call whereas Jenkins said he made the call. The Applicant claimed Bryon Jenkins first words were; “What the fuck are you doing calling the Union?”

[47] The Applicant’s version is that he said that he had spoken to his brother that afternoon who is a delegate of the CFMEU in another work area for the Respondent, and complained to him about what had occurred that day including being asked to operate the crane faster, the direction to leave the crane when he had refused to work faster and his leaving work. The Applicant said he did not speak to his brother as a CFMEU delegate but as his brother. The Applicant said he said to Jenkins words to the effect of: “I only spoke to my brother.”

[48] The Applicant said Jenkins said words to the effect; “It wasn’t me. Wasn’t me. I had no choice in what happened to you. I was directed to do it by the black fella.” The Applicant claimed he said words to the following effect; “What? Clarky.” The Applicant claimed Jenkins responded; “Yeah Clarky.” The Applicant claimed he then said to Jenkins; “Look. I would rather talk about this at work tomorrow.”

[49] The Applicant said he was tired and frustrated and end up finishing the conversation by saying words to the effect; “Don’t call me back and get fucked.” The Applicant said he then hung up. Jenkins version of the conversation was that after he asked the Applicant why he had gone to the unions about him and the Applicant started getting aggressive and that the Applicant said he had disrespected him by pulling him out of the crane. Jenkins claimed the Applicant continued to be aggressive until he hung up. 82

[50] The Applicant claimed he went back to bed after the phone call but because he was stressed by the phone call got up and drank a strongbow cider. He said earlier in the night he drank some mid strength beer as well. He said he went to bed at around 10pm. Jenkins conceded it was probably a mistake to have rung the Applicant that night. 83

Saturday 1 December 2012

[51] The Applicant said he woke in the morning feeling normal and did not have any reason to believe he might still have alcohol in his system. He said he presented for work as normal at 6.30am. He said a pre-start meeting was held for around 15 minutes. He said at no time during the meeting did Jenkins or Clarke direct any comment at him regarding what had happened over the previous couple of days. 84

[52] The Applicant said he approached Clarke at the end of the meeting and said words to the effect of; “What’s going on mate?” He confirmed in his oral evidence he approached Clarke. 85 The Applicant claimed Clarke shrugged and said; “What?”

[53] The Applicant claimed to say words to the effect; “You know what I am talking about. That bullshit that happened yesterday about me operating too slow, and now putting me with the same crew again.” The Applicant claimed Clarke replied in words to the effect: “So what?” The Applicant said he responded with words to the effect; “That’s it, I’ve fucking had enough. After the shit I’ve done working through lunches, working back, helping Jenko and the other inexperienced riggers and doggers, this is how you fucking treat me. I’m going over your head. I want to see Sam.” 86

[54] The Applicants oral evidence changed somewhat instead claiming he said “this is a load of crap.” 87 The Applicant admitted under cross examination that he “was a bit hot headed” and changed his earlier oral evidence saying “he may have pointed his finger at Joe...”88

[55] The Applicant said he wanted to see Sam Kapetanas the Project Manager. He said that Clarke replied with words to the effect; “Sam is already on his way down” to which the Applicant said he replied “Good.” The Applicant was unsure if Peter Baker from Bechtel was present at the time or not. 89

[56] The version as given by the Applicant is different to that of Clarke, Jenkins or Baker. Clarke said that morning he again held the ordinary pre-start meeting. He said Peter Baker, a Bechtel representative was present. Clarke said that he noticed after the meeting the Applicant was pacing up and down in an agitated manner. Clarke claimed he asked the Applicant what was wrong. He said the Applicant began to yell obscenities at him, stand very close to him, and pointed his finger in his face. He claimed the Applicant yelled, “Your fucking gone cunt, your fucking gone....just you wait.” 90The Applicant denied saying these words.

[57] Clarke claimed the Applicant then pointed to Bryon Jenkins and yelled, “And so is that fucking cunt over there.” 91The Applicant also denied saying this about Jenkins during his oral evidence.92 Clarke said the Applicant was about 1 foot in front of him when he claims the Applicant was pointing and yelling, and when he was pointing he was a matter of inches from his face.93 Clarke said the following in evidence;

PN 487 I see; so your evidence is that Mr Oastler has come up to you to ask you about being taken off the crane the previous day. He was upset about that and you were smiling at him. Is that your evidence?---If a bloke is screaming in my face - I found that his posture and the way he was carrying on was, yes, mildly amusing. I've never seen anything like it, a grown man like that carry on like that.

[58] Although it was not in his statement Jenkins was asked to describe what he saw on the Saturday morning. He said the Applicant was “glancing straight at me with a lot of eyeballing, like, with a threat look to him towards me so I knew that he had a lot of aggression that morning.” 94 He said he returned to his crib room where he heard a lot of yelling and loud voices. Jenkins said as he walking out he “noticed Mark was pointing the finger at Clarke and up in his face and that when I’ve noticed him walking back and I’ve asked Mark, “Is Everything alright Mark?” and he’s referred to me as, “Don’t you effin’ talk to me, mate.”95

[59] Clarke said as the Applicant was yelling at him he was able to smell what appeared to be alcohol on his breath. 96 Clarke claimed the Applicant walked away yelling obscenities at him. Clarke claimed Peter Baker approached him and said he could smell alcohol on the Applicants breath and he requested that the Applicant undertake a breath test as the Applicant seemed unfit for work. This was consistent with his oral evidence.97 Clarke said the Applicant then returned to yell more obscenities at him to which Clarke claims he said; “Mark, no-one is keeping you here. Leave if you don’t want to be here.” 98

[60] Clarke claimed the Applicant then became further agitated. Clarke said he then called McCreedy and advised him that there was an issue on-site and could he please attend. This is consistent with McCreedy’s evidence that he received a call from Clarke at approximately 6.55am requesting that he attend the Rec crib area as the Applicant was agitated and yelling abuse. 99

[61] Clarke said he then ended all contact with the Applicant. He said subsequent to this McCreedy and John Wilson the Superintendent arrived. He said at no point did the Applicant raise a safety concern. 100 McCreedy said he and Mr Wilson attended the Rec crib area and Clarke advised them that the Applicant was very agitated and aggressive and also smelt of alcohol.101

[62] Peter Baker, a Mechanical Supervisor and fitter by trade employed by Bechtel said he had 33 years experience in the mining and construction industries. He gave evidence that he attended the pre-start meeting at 6.30am that day and after the meeting he noticed the Applicant was acting in a fashion he had concerns about. Baker said the Applicant walked up to Clarke and eye balled him only inches from his face and verbally abused him. Baker claimed the Applicant yelled “Fuck you” at Clarke and other obscenities. Baker said the Applicant continued to abuse other personnel in the crew and then stormed off to the toilet crib area. 102

[63] Baker said that after this incident he spoke to Clarke to find out what it was about and Clarke then explained he could smell alcohol on the Applicants breath. Baker said Clarke then asked him to remain as a witness. Baker said he explained to Clarke that this person should not be allowed to operate any equipment until he has been breathalysed. 103

[64] Baker said after this two MDGS JV personnel turned up including Keith McCreedy and he explained to them that he had concerns about this person even being on site acting this way. Baker said he then left the site. McCreedy confirmed in his evidence that Baker expressed concerns about the Applicant being on site. 104 McCreedy also said he saw the Applicant being agitated when he arrived.105

[65] The Applicant said he then went to the smoking hut to wait forSam Kapetanas. He said Sam Kapetanas did not come but Keith McCreedy another Project Manager came to the area. The Applicant claims he said to Mr McCreedy words to the effect; “I am not happy, I was kicked out of my crane for being too slow. The reason I have to go that slow is for safety because we have inexperienced riggers and doggers.” The Applicant said Mr McCreedy said words to the effect; “We’ve got some problems with you too.” To which the Applicant said he replied to the effect; “Then I want to talk to my union delegate.” 106 In oral evidence the Applicant repeated his version that he said to McCreedy he wanted to see the union before McCreedy said to him that he had to have a drug and alcohol test.107

[66] This claim is inconsistent with the evidence of McCreedy who said he and Mr Wilson approached the Applicant and McCreedy claims to have said; “we obviously need to have a chat about things.” McCreedy claimed the Applicant replied he would only talk to Sam Kapetanas. McCreedy said he explained Kapetanas was unavailable. He claimed the Applicant then started telling him that the issues he had the day before were about safety and that is why he was on a “go slow”. McCreedy claimed he then asked if he had raised these issues through his Supervisor or through the hazard card option to which he replied no. 108

[67] McCreedy said he then advised he was going to have the Applicant drug and alcohol tested on a ‘just cause’ basis before continuing because of concerns raised by Clarke and Baker. 109 McCreedy claims it was at was at this point, and not before, that the Applicant advised he wanted his union representative present.110 McCreedy said he asked the Applicant “which one?” to which the Applicant replied, “Mark Nielson” and McCreedy says he then advised Clarke to call Nelson and have him attend.

[68] The Applicant said he called Mark Neilson who arranged for another delegate Les Fields to come. The Applicant said that by the time Les Fields had arrived he had been told to undergo a drug and alcohol test. The Applicant said it was around 5 to 10 minutes before Les arrived. This appears to be consistent with the evidence of McCreedy who said after speaking to union representative Mark Neilson, he asked John Wilson to take the Applicant to the paramedics for testing. Les Fields another representative arrived at the Rec crib rooms at around 8am, by which time McCreedy said he had been informed the Applicant had returned a positive alcohol reading. The Applicant accepted that he returned a reading of .008 which meant he would be unable to operate a crane. 111 He accepted he did not self test before the pre-start meeting which he acknowledged was available to him at the bus stop. McCreedy said he told Les Fields the Respondent was looking at providing the Applicant with a final written warning for events of the previous day and the Respondent now had to look at the events of that morning.112 113

[69] The Applicant said he was told to go home as he was over the limit to do any work. He said when he was at home he received a phone call in which he was told there would be an investigation and not to come into work in the meantime.

[70] The Applicant said he later received a phone call directing him to attend a meeting with Keith McCreedy and Sharyn Larsen from Human Resources. The Applicant said that it was his understanding of the Respondents alcohol policy that on the first time an employee presents for work with alcohol in their system, the employee is put on a requirement of having to do a breath test every morning for two weeks. He said he was told this by paramedics who performed the breath tests at the site. He said he had received around one previous test to the best of his recollection and blew zero on that occasion. The Applicant said the paramedics, and other workers on site joked about the “breakfast club”, which was a reference to particular workers who had to present for a breath test every morning for two weeks after they had been caught with alcohol in their system.

[71] The Applicant said he recalled the zero alcohol requirements being spoken about in pre-starts now and then. He said he did not recall ever being told that employees would be sacked if they blew anything over zero.” Clarke gave evidence he understood the employees joined the breakfast club for four weeks if they blew over zero, and a low reading did not result in dismissal. Jenkins generally supported this. Larsen said that if a worker returns a positive they are stood down until they return a clear sample and it is a final warning. 114

[72] The Applicant was shown a copy of a document titled ‘Hay Point Expansion Phase 3 Project - Project Work Rules.’ When asked if he had seen it before he said “Maybe, in the induction maybe briefly”. He accepted he had signed the document. He then said he did not sign the document at induction but was asked to come to the office. He agreed he went to an induction and wasn’t sure if all the rules were addressed during induction. He accepted at induction behaviour on site was discussed. He accepted that the project rules would prohibit offensive, intimidating, antisocial or violent behaviour. He again accepted he had verbally abused Clarke on Saturday 1 December. 115

7 December 2012

[73] Sharyn Larsen gave evidence that she is the Human Resource Manager for the Respondent and had previous experience as a HR and Training Superintendent with Rio Tinto and other HR roles prior to that. She said he holds post graduate qualifications in the area.

[74] The Applicant said he attended a meeting with Larsen, McCreedy and CFMEU Organiser Kane Lowth where he said he was asked about all of the matters he discussed in his statement and gave similar responses to what was in his statement. 116 McCreedy said the purpose of the meeting was to give the Applicant an opportunity to respond to his action of the previous week. McCreedy said to commence the meeting the four allegations were read out. McCreedy said the Applicant was asked if he understood the allegations and he replied yes. This is consistent with Larsen’s evidence. McCreedy said it was agreed at the meeting the Applicant would respond by Monday. Larsen agreed the allegations were given to the Applicant at the meeting verbally.117

[75] Larsen said the Applicant was then asked to outline his version of events. She said the Applicant admitted he informed Clarke that he was leaving site at 4.30 on Thursday 29 November and for Clarke to dock his pay. Larsen said she asked the Applicant if he was given permission to leave site and he replied that no-one said he couldn’t. 118

[76] Larsen said the Applicants advised he left site on Friday 30 November due to the fact that he was kicked out of the crane for going slow. Larson said the Applicant rejected her suggestion it was because he did not get his way about the buses and rejected he had told Jenkins he was going slow and there was nothing Jenkins could do about it. 119

[77] Larsen said the Applicant claimed he was going slow due to inexperienced crew and working at a steady pace. She said the Applicant also said the SPMT was operating without barricades, people were walking everywhere and another employee nearly walked under his load. Larsen said McCreedy asked the Applicant if he had reported any of this and he answered no as he didn’t get a chance. 120

[78] Larsen said she asked the Applicant about Saturday 1 December and on him giving his response she claimed she told him it was not what the other statements said. Larsen said the Applicant asked if the statement was from ‘the Bechtel bloke’ and she replied yes. Larsen said the Applicant claimed he was only tested for alcohol because he wanted a union rep to which she said McCreedy replied this was not true and he was told he would be tested before asking for union representation. 121

[79] Larsen said she asked for a written statement from the Applicant and said Mr Lowth advised he only had the statement for Thursday and Friday and that the statement will be sent by close of business Monday 10 December 2013. 122

10 December 2012

[80] Larsen said on 10 December 2013 she sent an email to Mr Lowth with the allegations for response. 123 The Applicant agreed he sent an email to the Respondent on 10 December 2012 responding to the allegations set out in an email sent earlier that day at 8.10am from Sharyn Larsen which were the allegations outlined at the meeting of 7 December 2012. 124 125 126 127 128 The fact that the issues in the email of the morning of 10 December were the same issues the Applicant was asked about at the meeting of 7 December is consistent with the Applicants statement. Larsen’s email notes the agreement at the meeting on 7 December that the Applicant would provide a statement to the Respondent in relation to the allegations by 5pm on Monday 10 December 2012.

[81] Ms Larsen said McCreedy had checked whether there had been any hazard cards or safety concerns raised by the Applicant in the relevant periods and there had been nothing. 129 She said he consistently had raised concerns about buses including at pre-start meetings over the relevant days.130 Larsen said after receiving the Applicants written response she and McCreedy went through the statements and the Applicants statement did not correlate with any of the other statements.131

12 December 2012

[82] The Applicant said that he was called to a second meeting at which he was given a termination letter. Ms Larsen said the decision to terminate was taken as a management decision when the evidence was presented by McCreedy and herself to Mr Kapetanas who had the ultimate say. 132

[83] Larsen expressed the view that the Applicants conduct on Thursday 29 November was not serious misconduct. 133 Larsen said the statements of Clarke, Jenkins and Baker were the key statements.134 Larsen said the reasons for termination related to the Applicants behaviour and a breach of Project Rules. She said in oral evidence that the biggest issue was the altercation with Clarke, the other issues would purely have been misconduct, and would not have resulted in termination.

[84] The termination letter came into evidence as an attachment to Larsen statement. 135 The termination letter advised that after consideration of all of the information provided during the investigation the allegations had been upheld. The termination letter states on that on reviewing the Applicants version of events the Respondent found that there were inconsistencies and in general the Applicants version of events was not supported by the several witness statements the Respondent had received in support of the allegations made against the Applicant.

[85] The termination letter states that at no time did the Applicant raise any safety concerns with his leading hand or Superintendent, he did not stop the job for safety, nor did he discuss these concerns at any prestart or toolbox. In determining whether it is satisfied that a dismissal is harsh, unjust or unreasonable the FWC must take into account a number of factors which I will now deal with.

Conclusion

[86] The Applicant argues there is no valid reason for termination. 136 It was argued for the Applicant he was raising a concern about the buses as it amounted to unpaid overtime. Further it was argued for the Applicant it was lawful for him to leave site when he did on 29 November as he is entitled to refuse to perform overtime when it is unreasonable.137

[87] The evidence did not show the Applicant was required to perform unpaid overtime on account of the arrival time of buses at the car park at end of shift. The Applicant made the assertion, but provided no specific particulars of dates and times to support the claim. The evidence of Clarke, Jenkins and Larsen did not support the claim. It appeared common ground buses generally collected employees at 4.50pm or earlier. While the Applicants evidence was that sometimes workers did not arrive at the car park until after 5pm, the evidence of other witnesses was the bus trip from the Rec area to the car park, was a trip of around 2 kilometres driven at 20km’s an hour and generally employees arrived at the car park before 5pm in circumstances where employees were paid until 5pm.

[88] There was a direct conflict in the evidence of the Applicant and Clarke over whether a discussion occurred between them on the morning of 28 November 2013 concerning the buses. Clarke’s evidence in regard to the claimed meeting was detailed and consistent compared to the Applicants denial that the meeting occurred at all. The Applicants other evidence in this matter on a number of occasions appeared to be unreliable, to change or be uncertain.

[89] The Applicant said on the distance from the Rec club to the car park it was five or six kilometres, then four or five kilometres when other witnesses gave consistent evidence that it was in the order of 2 kilometres. He appeared unsure on what was said about buses at the pre-start meeting on Thursday 29 November whereas Clarke was clear. He claimed to have not discussed the buses until between the first and second break whereas Clarke and Jenkins were clear he raised it in an agitated way at the pre-start that morning. The Applicants evidence also changed on whether he raised safety with Jenkins after he was told he was being replaced as the crane operator on 30 November. His statement and initial oral evidence made no such claim, but his later oral evidence changed to say he did. It would have been expected that he would have addressed such an important matter in his witness statement considering he claimed it was the basis for his actions on 30 November and it was known when his statement was prepared this was in dispute. On the matter of whether he pointed his finger at Clarke during their exchange on Saturday 1 December he changed from an initial denial to saying he may have. This also tends to weigh against accepting the Applicants evidence that no meeting occurred on 28 August and also in regard to other points of dispute in the evidence.

[90] The evidence supports a conclusion that the Applicant left site early on Thursday 29 November because he was motivated by his dissatisfaction about the bus issue. He was not given approval to leave site earlier than his usual end of shift. The action stopped the remainder of his crew from being able to continue to work. His argument is that no one told him not to leave. This does not absolve him of an obligation to have sought and been given approval to leave in circumstances where his rostered finishing time was 5pm (which included a period of rostered overtime). He left site 30 minutes early, directly impacting 3 other work colleagues. It is not plausible to argue the Applicant has some tacit approval to leave. Leaving early on 29 November as the Applicant did was misconduct.

[91] It was argued for the Applicant his version of events should be accepted over Jenkins with regard to 30 November on the basis that it is not credible to accept a leading hand would allow an employee to operate a crane when an employee had told his leading hand that he intended to deliberately go slow. 138 It was further argued for the Applicant that as he was stressed he was therefore ill and entitled to leave the project on that basis. The Applicant had told his leading hand he was leaving and had attempted to contact Clarke.139 Merely advising Jenkins he was leaving and attempting to contact Clarke does not constitute approval to leave. While it appears clear enough he said he was stressed he did not say he intended to take personal leave because of it.

[92] It was also said because the Applicant had a dogman on the ground who was new he was taking extra caution and therefore there should be no concern with the Applicants actions on that basis as he motivated by a genuine safety concern. 140 Where there is a conflict in the evidence of Jenkins and the Applicant concerning the events of the day of 30 November I prefer Jenkins evidence. I do so for reasons set out above concerning the Applicants evidence and also because it is difficult to accept that the Applicants actions in operating the crane at a slow pace that day were in connection with a genuine safety concern when the evidence discloses he never raised any safety concerns about the issue at any time during the day or prior. I accept Jenkins claim that the Applicant foreshadowed his intention to operate the crane slowly early on the day of 30 November because of his dissatisfaction about the buses. Jenkins evidence is more plausible because it is consistent with the evidence that the issue had remained at the forefront of the Applicants mind in the preceding days including at the pre-start that morning and he was most displeased about it.

[93] The Applicant accepted in his oral evidence that he had raised the matter of the buses with Mr Kapetanas at the pre-start meeting and also accepted that Mr Kapetanas said that there would be no change to the schedule. Conversely, the evidence does not support that the Applicant ever raised safety issues at pre-start meetings or at any other time until claiming it as the basis for his actions the following day. Jenkins evidence concerning the reasons why he did not deal with the Applicants conduct more assertively on 30 November is believable. He was new in the role as a leading hand. His explanation that he wanted to avoid conflict with the Applicant and was hoping the matter would resolve itself is credible given the circumstances. Clarke’s evidence corroborates Jenkins evidence that they were in contact throughout the day in regard to the Applicant before Clarke ultimately directed Jenkins on what he should do about it.

[94] While the Applicants conduct on 30 November was not according to the Respondent ultimately decisive in the decision to terminate the Applicants employment, I am satisfied the Applicants decision to leave work when he did constituted misconduct, as did his deliberate slow operation of a crane for reasons connected to his dissatisfaction over the bus issue.

[95] The Applicant argued the phone call from Jenkins on the evening of 30 November upset him in circumstances where he was already stressed and this caused him to have one more drink which then led to the positive blood alcohol reading the next day on 1 December. 141 There was some conflict between the evidence of the Applicant and Jenkins concerning the conversation. Not much turns on the fact that Jenkins rang the Applicant on the evening of 30 November. The Applicant regrets making the call, but even on the Applicants version of the conversation it does not provide a justification for failing to comply with the Respondents alcohol and drug policy, including failing to self test the following morning.

[96] In regard to the incident of 1 December it was said for the Applicant that Clarke was not bothered by the Applicants conduct and laughed and thought it was funny and that the evidence is unclear on the distance between them. Further it was argued there are mitigating circumstances for his conduct in connection with the phone call from Jenkins the previous evening, and that people are loud and swear in the construction industry. It was further said that the Applicant’s concession that he verbally abused Clarke is the hallmark of an honest witness and should count in the Applicants favour. 142 Further the version of the events of the morning of 1 December as put by the Applicant are different and less serious than as put by the Respondent.

[97] The evidence of Clarke, Baker and Jenkins all support a finding that the conduct of the Applicant was more serious then as put by the Applicant. I am inclined to accept Clarke’s evidence that the Applicant did yell obscenities at him, stood very close to him, and pointed his finger in his face. I am also inclined to accept Clarke’s evidence that the Applicant yelled, “Your fucking gone cunt, your fucking gone....just you wait.” and then pointed to Jenkins and yelled, “And so is that fucking cunt over there.”

[98] Clarke said the Applicant then returned to yell more obscenities at him to which Clarke claims he said; “Mark, no-one is keeping you here. Leave if you don’t want to be here.” 143 Clarke’s evidence is consistent with Baker’s evidence that the Applicant walked up to Clarke and eye balled him only inches from his face and verbally abused him. Baker claimed the Applicant yelled “Fuck you” at Clarke and other obscenities. Baker said the Applicant continued to abuse other personnel in the crew and then stormed off to the toilet crib area. Baker confirmed Clarke also asked him not to leave in the circumstances.

[99] Clarke, who gave the impression of being confident in his role as a construction site superintendent, gave evidence that was corroborated by McCreedy, that he specifically requested McCreedy attend site in connection with the Applicants behaviour. This supports a conclusion that the Applicants conduct was serious.

[100] The evidence of Clarke and Baker about the language and demeanour of the Applicant is further supported by Jenkins who said the Applicant was “glancing straight at me with a lot of eyeballing, like, with a threat look to him towards me so I knew that he had a lot of aggression that morning.” 144Jenkins said he returned to his crib room where he heard a lot of yelling and loud voices and when he walked out he “noticed Mark was pointing the finger at Clarke and up in his face and that when I’ve noticed him walking back and I’ve asked Mark, “Is Everything alright Mark?” and he’s referred to me as, “Don’t you effin’ talk to me, mate.”145

[101] On the balance of probabilities I am satisfied the conduct of the Applicant as claimed in the evidence of Clarke, Baker and Jenkins on Saturday 1 December occurred and is also a valid reason for termination, particularly when viewed in the wider context of his conduct in the preceding two days. The Applicants case sought to make something of Clarke’s evidence that he was not angered or intimidated by the Applicants behaviour and that Clarke gave evidence that he regarded the Applicants conduct as mildly amusing. As stated Clarke presented as a confident witness, experienced in managing construction workers and it is plausible he reacted to the Applicants conduct in the way he described. Clarke said in evidence, “I’ve never seen anything like it, a grown man like that carry on like that.” 146 That Clarke did not react to the Applicants conduct is testament to Clarke’s professionalism; however it does not make the Applicants conduct any less serious. It must be remembered Clarke was the Superintendent of Logistics and Jenkins was a leading hand. The Applicant was also not a long term employee of the Respondent, having been employed for less than 10 months.

[102] The Applicant claimed he asked for union representation before he was directed to take an alcohol and drug test. On balance I prefer the evidence of McCreedy that he was asked to take the test before he made the request for union representation. McCreedy’s version is consistent with Clarke and Baker’s evidence that Baker had already made the request to Clarke that the Applicant be tested before McCreedy had come to site, and is consistent with the evidence that Clarke and McCreedy discussed this before McCreedy first spoke to the Applicant. This is also somewhat beside the point in any event as there is no dispute that the Applicant when tested failed the test. This supports the conclusion that the Respondent had just cause and was not requiring the Applicant to be tested in response to the Applicants request for representation as claimed by the Applicant.

[103] The Applicants conduct on 29 November in leaving site early, and on 30 November of leaving site early and deliberately operating the crane slowly, and on 1 December of engaging in aggressive and abusive behaviour directed at a superintendent, leading hand and others constituted wilful and deliberate misconduct inconsistent with the continuation of the employment relationship. The breach of the Fitness for Work policy should be viewed separately. The evidence shows the Respondent would be unable to rely on it of itself to justify dismissal as that would be inconsistent with the way the policy is generally applied.

[104] The Respondent had a valid reason for termination because it was entitled to be satisfied following its investigation that the Applicant quite deliberately walked out of the work place for two consecutive days in a row, and on the second of those days deliberately operated his crane slowly in protest about the bus timetable, and on the third and following day engaged in an aggressive verbally abusive attack on his superintendent and to a lesser extent Jenkins. The reasons given by the Respondent for termination were sound defensible and well founded. They were based on the findings of its investigation which included that the Applicants conduct was in breach of the Hay Point Expansion 3 Project Agreement at clause 8.1 which states that employees bound by the Agreement commit to remain at their workplace until their designated finishing time, and also in breach of the Project Work Rules which the Applicant had signed on 24 February 2013. The Project Work Rules were breached on the basis of unauthorised absences from work and offensive, intimidating, anti-social behaviour.

[105] The Applicant confirmed he was provided a copy of the termination letter at a meeting on 12 December 2012. That termination letter in clear terms sets out the reasons for termination based on the Respondents investigation.

[106] The Applicant further argues that there was no opportunity to respond to the allegations. The Applicant said the first opportunity to respond to written allegations was the day they were first provided in writing. 147 However the evidence was clear that an agreement had been made on the previous Friday 7 December with both the Applicant and his representative present that a written response would be provided by close of business on 10 December. The evidence was clear that each of the allegations was discussed in the course of the meeting on 7 December. The nature of the issues did not change between the meeting on 7 December and the sending of the email by Ms Larsen on the morning of Monday 10 December. The Applicant was given an opportunity to respond. It was also argued that the reason the email was not sent earlier than 10 December was because Ms Larsen was finalising the investigation and therefore had made up her mind, therefore denying the Applicant a genuine opportunity to respond. That claim for the Applicant is inconsistent with the evidence of McCreedy and Larsen that the written response of the Applicant was compared to the other statements received. The evidence does not support the conclusion that the Respondent had closed its mind before receiving the Applicants written response on 10 December.

[107] The Applicant requests for union representation were accommodated by the Respondent at each stage of the investigation. The considerations set out in Section 387(e),(f),(g) and (h) do not have any particular influence in the outcome in this matter. For all of the reasons set out above I find that the termination of the Applicant was not harsh, unjust or unreasonable and the application is therefore dismissed.

COMMISSIONER

Appearances:

Mr O’Brien of the Construction, Forestry, Mining and Energy Union (CFMEU) for the Applicant

Mr Power of Drayton’s Workplace Consulting for the Respondent

Hearing details:

Mackay

August 2013

1 Transcript dated 27 August 2013 PN 801

2 Transcript dated 27 August 2013 PN 353 to 357

3 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 8

4 Transcript dated 28 August 2013 PN 1368

5 Transcript dated 27 August 2013 PN 62

6 Transcript dated 27 August 2013 PN 63

7 Transcript dated 27 August 2013 PN 71 to 74

8 Transcript dated 27 August 2013 PN 74

9 Transcript dated 27 August 2013 PN 65

10 Transcript dated 27 August 2013 PN 403 to 407

11 Transcript dated 27 August 2013 PN 807 to 808

12 Transcript dated 28 August 2013 PN 1606

13 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 10

14 Exhibit 2 Email from Paula Oastler dated 10 December 2012 paragraph 3

15 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 4

16 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 5

17 Transcript dated 27 August 2013 PN 583

18 Transcript dated 27 August 2013 PN 553

19 Transcript dated 27 August 2013 PN 75 to 76

20 Transcript dated 27 August 2013 PN 87

21 Transcript dated 27 August 2013 PN 78

22 Transcript dated 27 August 2013 PN 81

23 Transcript dated 27 August 2013 PN 85

24 Transcript dated 27 August 2013 PN 91

25 Transcript dated 27 August 2013 PN 93 to 94

26 Exhibit 5 statement of Byron Jenkins dated 13 August 2013 paragraph 2

27 Exhibit 5 statement of Byron Jenkins dated 13 August 2013 paragraph 3

28 Transcript dated 27 August 2013 PN 109

29 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 11

30 Transcript dated 27 August 2013 PN 115

31 Transcript dated 27 August 2013 PN 95 to 96

32 Transcript dated 27 August 2013 PN 100

33 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraphs 15 to 17

34 Transcript dated 27 August 2013 PN 106

35 Transcript dated 27 August 2013 PN 116

36 Transcript dated 27 August 2013 PN 119

37 Transcript dated 27 August 2013 PN 847

38 Transcript dated 27 August 2013 PN 142

39 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 13

40 Transcript dated 27 August 2013 PN 138 to 139

41 Transcript dated 27 August 2013 PN 578

42 Eexhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 13

43 Transcript dated 27 August 2013 PN 141

44 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 14

45 Exhibit 5 Statement of Byron Jenkins dated 13 August 2013 paragraph 5

46 Transcript dated 27 August 2013 PN 158

47 Exhibit 5 Statement of Byron Jenkins dated 13 August 2013 paragraph 6

48 Transcript dated 27 August 2013 PN 167

49 Transcript dated 27 August 2013 PN 194 to 196

50 Transcript dated 27 August 2013 PN 883

51 Transcript dated 27 August 2013 PN 892

52 Transcript dated 27 August 2013 PN 151

53 Transcript dated 27 August 2013 PN 979

54 Transcript dated 27 August 2013 PN 170

55 Transcript dated 27 August 2013 PN 840

56 Transcript dated 27 August 2013 PN 983 to 986

57 Transcript dated 27 August 2013 PN 988

58 Transcript dated 27 August 2013 PN 144

59 Transcript dated 27 August 2013 PN 175

60 Transcript dated 27 August 2013 PN 176

61 Transcript dated 27 August 2013 PN 182

62 Exhibit 5 Statement of Byron Jenkins dated 13 August 2013 paragraph 7

63 Transcript dated 27 August 2013 PN 894

64 Transcript dated 27 August 2013 PN 923

65 Transcript dated 27 August 2013 PN 614

66 Transcript dated 27 August 2013 PN 632

67 Eexhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 15

68 Transcript dated 27 August 2013 PN 929

69 Transcript dated 27 August 2013 PN 934

70 Transcript dated 27 August 2013 PN 1105 to 1106

71 Transcript dated 27 August 2013 PN 1109

72 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 22 to 25

73 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 26

74 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 27

75 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 28

76 Eexhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 16

77 Transcript dated 27 August 2013 PN 1061

78 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 paragraph 3

79 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 paragraph 4

80 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 paragraph 6

81 Transcript dated 27 August 2013 PN 1122

82 Exhibit 5 Statement of Byron Jenkins dates 13 August 2013 paragraph 8

83 Transcript dated 27 August 2013 PN 977

84 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 48 to 49

85 Transcript dated 27 August 2013 PN 199

86 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 52 to 54

87 Transcript dated 27 August 2013 PN 212

88 Transcript dated 27 August 2013 PN 215

89 Transcript dated 27 August 2013 PN 217

90 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 17

91 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 17

92 Transcript dated 27 August 2013 PN 214

93 Transcript dated 27 August 2013 PN 410

94 Transcript dated 27 August 2013 PN 815

95 Transcript dated 27 August 2013 PN 817

96 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 17

97 Transcript dated 27 August 2013 PN 709 to 710

98 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 18

99 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 paragraph 7

100 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 18

101 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 paragraph 7

102 Exhibit 7 Statement of Peter Baker dated 13 August 2013 paragraph 3

103 Exhibit 7 Statement of Peter Baker dated 13 August 2013 paragraph 5

104 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 paragraph 8

105 Transcript dated 27 August 2013 PN 1130

106 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 62

107 Transcript dated 27 August 2013 PN 221

108 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 Paragraph 9

109 Transcript dated 27 August 2013 PN 1245

110 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 Paragraph 10

111 Transcript dated 27 August 2013 PN 223

112 Exhibit 6 Statement of Mark McCreedy dated 13 August 2013 Paragraph 12

113 Transcript dated 27 August 2013 PN 1154

114 Transcript dated 28 August 2013 PN 1629

115 Transcript dated 27 August 2013 PN 327 to 334

116 Exhibit 1 Statement of Mark Oastler dated 22 July 2013 paragraph 76

117 Transcript dated 28 August 2013 PN 1510

118 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 Paragraph 9

119 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 Paragraph 10

120 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 Paragraph 11

121 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 Paragraph 15

122 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 Paragraph 16

123 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 Paragraph 17

124 Transcript dated 27 August 2013 PN 239 to 241

125 Transcript dated 27 August 2013 PN 313

126 Transcript dated 27 August 2013 PN 343

127 Exhibit 2 Email from Paula Oastler dated 10 December 2012

128 Exhibit 3 Email from Ms Larsen dated 10 December 2012

129 Transcript dated 28 August 2013 PN 1529

130 Transcript dated 28 August 2013 PN 1535

131 Transcript dated 28 August 2013 PN 1667

132 Transcript dated 28 August 2013 PN 1476

133 Transcript dated 28 August 2013 PN 1488

134 Transcript dated 28 August 2013 PN 1502

135 Exhibit 8 Statement of Sharyn Larsen dated 13 August 2013 attachment 4

136 Transcript dated 28 August 2013 PN 1746

137 Transcript dated 28 August 2013 PN 1761

138 Transcript dated 28 August 2013 PN 1763

139 Transcript dated 28 August 2013 PN 1766

140 Transcript dated 28 August 2013 PN 1768

141 Transcript dated 28 August 2013 PN 1772

142 Transcript dated 28 August 2013 PN 1776 to 1778

143 Exhibit 4 Statement of Joe Clarke dated 13 August 2013 paragraph 18

144 Transcript dated 27August 2013 PN 815

145 Transcript dated 27 August 2013 PN 817

146 Transcript dated 27 August 2013 PN 487

147 Transcript dated 28 August 2013 PN 1779

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