Mr Shane Murphy v QR Limited

[2010] FWA 6930

[2010] FWA 6930

FAIR WORK AUSTRALIA

DECISION

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

Mr Shane Murphy
v
QR Limited
(U2010/7207)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 SEPTEMBER 2010

Summary: termination of employment - widespread behavioural dysfunction in the workplace– vexatious claim against co-worker\supervisor – fact finding - credit – dishonesty and context.

[1] Mr Shane Murphy (“the Applicant”) was employed by QR Limited (“the Respondent”) in July 1985 until his employment was terminated on 5 March 2010. The Applicant seeks an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the FW Act”). 1

[2] There is no dispute between the parties that the requirements of s.380 of the FW Act and s.381 of the FW Act have been met, and that, as a consequence, the application for a remedy may be heard by Fair Work Australia (“FWA”).

[3] This matter was subject to a conciliation conference conducted on 20 April 2010. As that conference did not resolve the matters in contest, the matter was referred to me for arbitration.

[4] At the request of the parties, a site inspection was conducted on the morning of Wednesday, 25 August 2010. The matter was heard at the Rockhampton Court House between 25 August 2010 and 27 August 2010, and then in Brisbane on 1 September 2010.

[5] It appears at the time of the Applicant's dismissal he was employed in the capacity of a Fitter in the Respondent’s “Wheel Shop” at its Rockhampton site and was required to perform duties refurbishing wagon and locomotive wheels. The Applicant claimed over the course of his 25 years of employment with the Respondent that he had no recollection of being subject to any disciplinary action (but for the actions taken in relation to this matter). 2

[6] The Applicant's employment was terminated following two investigations into certain alleged aspects of his conduct whilst an employee. The investigations (which were conducted by McCullough Robertson Lawyers) were carried out between August and September 2009. These are matters discussed below. Further investigations were carried out in relation both to incidental allegations and subsequent allegations between November and December 2009.

[7] The investigations canvassed a very wide range of issues and events and incidents, which are themselves not directly relevant to the application before me, though arguably they form a wider body of context. There were some 19 allegations arising from the first investigation, which were then further investigated in the second investigation, which involved some 52 interviews. Of those allegations that were sufficiently particularised, they applied to some 10 employees, of whom the Applicant was one. 3 The Respondent only relied upon the matters discussed below and evidence was only led in relation to those.

[8] Three disciplinary interviews were conducted with the Applicant, one on 13 October 2009, a second on 30 October 2009 and another on 12 November 2009. The last two interviews concerned the matters arising from allegations made by the Applicant about Mr Wayne Browne, his Team Leader, at the first disciplinary interview. These allegations were subject to inquiry within the widened terms of reference of a second investigation. These matters are set out below. Further disciplinary interviews were conducted on 4 February 2010, 11 February 2010 and 22 February 2010.

[9] A show cause notice 4 was provided to the Applicant on 22 February 2010 (to which the Applicant made a detailed response to on 25 February 2010).

[10] The Applicant was said to have breached the Respondent Code of Conduct, Values and Behaviours and its Equity, Diversity, Harassment and Discrimination Standard (“the Code of Conduct”). It is claimed that the Applicant had been appropriately exposed (over the period 2002-2004) to the relevant corporate documentation in this regard. 5

[11] The so-called “substantiated allegations” concerned the use of abusive and disrespectful language (on 31 July 2009) against Mr Browne, (“the first allegation”); the use of abusive and demeaning language in relation to fellow workers (“the second allegation” ); and victimising and harassing Mr Browne throughout the latter part of 2009 (“the third allegation”).

[12] It is useful, I think, to place the allegations within what the Respondent would probably described as the wider behavioural context, to which I referred above. That is, the evidence for the Respondent, essentially, was that the Wheel Shop culture exhibited behavioural dysfunction and it was in this setting that the Applicant’s conduct is properly contextualised. That said, the Respondent was also of the view, quite properly, that the Applicant's conduct stands on its own and must be evaluated as such.

THE WHEEL SHOP WORKPLACE CULTURE

[13] The Respondent contended that the Wheel Shop exhibited a very wide range of anti-social conduct that was intended to harass and humiliate supervisory employees and sponsor an anti-management culture.

[14] Evidence was given that employees in the Wheel Shop would anonymously yell out offensive language from their places of work. 6 On other occasions an employee fired paint balls from within the Wheel Shop at the Team Leaders’ office,7 photographic evidence of which was bought into evidence. Employees are also said to have drawn graphic and offensive depictions of female genitalia on a chair used by Ms Michelle Horn, Operations Manager, Components and Wagons, to conduct employee meetings, and on toilet walls (along with other offensive graffiti).8

[15] Others, apart from Ms Horn, also gave evidence that the Wheel Shop was also subject to a deal of sexual and abusive graffiti writing and drawing. There are further references to this conduct in the discussion below. 9

[16] Ms Horn described the Wheel Shop as “a rough and unpleasant environment and there is a huge anti management culture which is very much based on the assumption that Managers and Leaders are wrong”. 10 The workshop was said to have been referred to as “the snake pit”.11

[17] Mr Arnold Doherty, the Operations Manager across the three workshops (including the Wheel Shop) at the Rockhampton site (and Mr Browne’s direct supervisor), stated that the culture in this particular workshop was disrespectful and that managers and team leaders were treated as “fair game” by employees and verbally attacked by them. 12 Other employees had been physically aggressive and thrown wheelie bins and chairs around and threatened supervisors in aggressive and offensive terms.13

[18] Mr Donald Wilson, a Team Leader in the Wheel Shop, gave similar evidence about the direct use of abusive and aggressive language in the Wheel Shop by employees and the refusal to obey directions regarding various business processes. Some of the incidents recounted by Mr Wilson, but not all, are touched on below, including the incident in which he was the butt of a prank involving an exposed electrical wiring on a microwave oven. 14 Mr Wilson also gave evidence of abusive and sexually explicit graffiti being written on the toilet walls.

[19] Mr Wilson claimed to have been significantly affected by the workplace culture in which he worked and now works reduced hours in another role. He gave evidence that he receives regular counselling, psychological and psychiatric support and has been diagnosed with a depressive order. 15 Another of the team leaders, whose evidence is partly dealt with immediately below, was also affected in similar terms to Mr Wilson and hospitalised.

[20] Mr Browne, the other Team Leader in the Wheel Shop, claimed that a core group of workers:

• had an aggressive, verbally abusive and confrontational attitude to supervisors and would try to intimidate them;



• was influential amongst the wider workforce, and would intimidate the workforce as well as the supervisory staff;



• would influence others to work slow or not cooperate with management; and



• who referred to those employees who cooperated with management as “arse lickers” or “lickers” and signs to this effect were held up in the Wheel Shop. 16

[21] Mr Browne claimed the Applicant was one of the core groups of workers referred to above.

[22] Mr Ricky Cooke, a Turner in the Wheel Shop, had acted in the position of Team Leader “on and off” since the mid 1980s. Mr Cooke claimed that employees would shout and swear aggressively at the Team Leaders, and he never aspired to have the job on a full time basis. 17

[23] Mr Hansen, a Labourer in the Wheel Shop, gave evidence that tool box meetings were an “embarrassment” during which employees would attack and belittle team leaders “saying things like “you’re a f.ck..g snake” and “you’re a f.ck..g joke”. 18 There were counter claims that a Team Leader once used aggressive language to one shift, but not in personally abusive terms.

[24] Mr Browne claimed that when he started at the Wheel Shop a group of workers surrounded him and referred to him as a “blue shirt c.nt” (employees in a supervisory role wore blue shirts) and said a book was being run on how long he would last as Team Leader. 19

[25] The conduct of the core group, as Mr Browne described it, involved trashing the Team Leader’s office by placing axel grease on the desk, mouse and phone and leaving tacks on chairs. 20 Mr Browne’s evidence also reflected that of Ms Horn’s in relation to the incident in June 2009 in which paint balls were fired at the Team Leader’s office window.

[26] On other occasions Mr Browne stated that a hangman’s noose was hung up over the door jam and shortly thereafter by a disabled toilet near the Team Leader’s office. 21 Mr Wilson, as Team Leader, also said that he endured similar treatment.22

[27] Mr Browne also claimed that sharpened nails had been placed in a piece of wood and place under his car tyres at home. Two car tyres were shredded. His car was also egged and a dead magpie placed in the back of his utility. 23 Mr Wilson also claimed his car had also been egged.24

[28] Like Mr Wilson as Team Leader, Mr Browne in his role as Team Leader claimed to have been significantly affected emotionally or psychologically by the workplace environment. 25

[29] It appears that at least from on or about July 2009 the workplace suffered from an increased measure of disaffection, the reasons for which are touched on below. At that time employees sought an inquiry into the conduct of Mr Wilson. The Respondent subsequently instigated its own inquiry, at the prompting of Mr Browne, Mr Wilson and Ms Horn, into the conduct which had been manifested in the workplace. Some 51 employees were interviewed.

[30] There is a wider set of conduct arising from the evidence than that set out above. Some of the further claims about the conduct of the Wheel Shop employees form part of the further discussions below.

THE INVESTIGATION

[31] The Applicant was found in the initial investigation to be an employee about whom certain allegations had been made. Some seven other employees were also subject to disciplinary processes arising from the first investigation report (and made subject to disciplinary and performance requirements, short of dismissal). 26

[32] The Applicant faced some eight allegations, which were considered over two investigation reports.

[33] The first report was provided to the Applicant on 6 October 2009. This report appears to have found two allegations to be substantiated. These allegations comprise of the first and second allegations referred to above. 27

THE FIRST ALLEGATION AGAINST THE APPLICANT

[34] The detail of the evidence relied 28 upon in respect of the first allegation was that the Applicant had been walking behind Mr Browne when Mr Browne had an exchange with another employee, a Mr Nigel Smith, who was an apprentice, about Ricky Cooke, who had been an acting Team Leader at or about that time.

[35] It appears that in the immediately prior period Mr Cooke had made a number of decisions that had upset the workforce. One of these was to provide 2 hours of overtime (to accord with the Respondent’s fatigue policy) and not 2.5 hours that would have generated a meal break and an allowance for employees. Another issue appears to have concerned a request by Mr Cooke, on instruction from management that employees put in their job cards when the whistle (which denoted the end of the working day) sounded, not after they had showered.

[36] A further dispute appears to have arisen as well, and this concerned the number of employees required to safely operate a particular lathe.

[37] As further (apparent) context, it was also claimed that Mr Cooke and the Applicant had had altercations as early as June 2009 at which time the Applicant, when reprimanded for inappropriate comments, said to him words to the effect of “Do you want to take me on?” to Mr Cooke. 29

[38] In any event, in the course of their exchange, Mr Smith allegedly stated to Mr Browne that Mr Cooke had been given preferential treatment and had in turn provided sexual favours to him (Mr Browne) - the later claim comprising of a gratuitous and sexually explicit comment. 30 Mr Browne is said to have defended Mr Cooke’s work ethic and reprimanded Mr Smith for reflecting on Mr Cooke in the manner he did.31

[39] The Applicant is then said to have over heard Mr Browne’s reprimand to Mr Smith and “roared” to Mr Browne that “What the f..k?”

[40] Mr Browne is said to have replied: “You and your mates will not take personal satisfaction from giving a hard time to Ricky [Mr Cooke] or anyone else.”

[41] The Applicant is said to have responded by yelling words to the effect that “Ricky is a f...ing c..t, that is my opinion and I am entitled to it”. 32

[42] Later that day it is further stated that the Applicant said to have “yelled” to Mr Browne that “Ricky is a f..ing c..t, he is a piece of sh.t”. 33

[43] Mr Browne is said to have advised the Applicant about inappropriate language and asked him to desist. The Applicant is said to have warned Mr Browne to not get on his “dark side” and that “you haven’t seen my dark side yet”. 34

THE SECOND ALLEGATION AGAINST THE APPLICANT

[44] The second allegation was found to be substantiated in so far as the Applicant was said to have referred to co-workers as “arse lickers”, which contributed to the uncooperative culture in the workshop and belittled other co-workers. 35

[45] In this regard, the Applicant is said to have “regularly” referred to co-workers in this manner.

[46] The Applicant, as discussed above, is said to have contended, eventually, that this was a term he used in a jocular manner.

THE THIRD ALLEGATION AGAINST THE APPLICANT

[47] The third allegation concerned a claim that the Applicant had made a false complaint against Mr Browne by claiming that Mr Browne had sold him home made rum on company premises. The Respondent's investigation found this to be a false or vexatious claim designed to victimise or harass Mr Browne. The Respondent did not interview any persons named by the Applicant at the time as witness that might be able to corroborate his claim. The Respondent contended that none of these witnesses were in a position to provide corroborating evidence as they were not direct witnesses to any of the alleged sales of rum or the occasions on which Mr Browne had allegedly proffered the rum for sale.

APPLICANT'S RESPONSE TO THE FIRST ALLEGATION AND RELATED EVIDENCE

[48] In relation to the first allegation, which occurred on 31 July 2009, the Applicant contended that he:

• did not speak to Mr Browne in the terms as alleged;



• recalls intervening in a heated argument between Mr Browne and another employee (that is, Mr Smith) 36;



• does not recall Mr Browne making any reference to “you and your mates” etc; never referred to Ricky (Cooke) in the terms claimed;



• had said on various occasions “I am entitled to my own opinion” but not in the context alleged nor at that particular time 37;



• never made any reference to his “dark side”. 38

[49] There was limited corroborating evidence in regards to these claims. Mr Bristow, who appeared as a witness for the Applicant, gave evidence under cross examination that he recalled over-hearing a conversation between Mr Browne and the Applicant in which a reference to the “dark side” was made. He recalled this for very particular reasons, but could not recall which party had said what. 39

[50] Mr Cooke recalled that on the day that Mr Browne had informed him about an altercation with the Applicant in the context of a discussion with Mr Smith, and that the Applicant had spoken in abusive terms about him (Mr Cooke). Mr Cooke said he raised the issues with both Mr Smith and Mr Murphy subsequently (neither of whom seem to have provided any confirmatory responses). 40 Mr Cooke was not challenged on his evidence in this regard.

APPLICANT'S RESPONSE TO SECOND ALLEGATION AND RELATED EVIDENCE

[51] As to the second allegation, which comprises a claim the Applicant referred to co-workers as “arse lickers”, the Applicant claimed, at least largely so, that his use of a such a term was jocular only in intent, and the term was used broadly in the Wheel Shop. 41

[52] Evidence was also led by Mr Lee Graham (Labourer and Acting Team Leader) that the term had been used “reasonably often” in the workshop. 42 The evidence of Mr Gary Green (Fitter) was to the same effect.43

[53] Mr Doherty’s (Operations Leader) evidence, however, was that the term was not often used in jest and was used in a derogative manner, and that he recalled the Applicant using the terms at certain Wheel Shop meetings. 44 Mr Browne also contended that the Applicant used the term.45 Mr William Hansen, a Labourer in the Wheel Shop , gave evidence that while the term “arse lickers” could be used in the Wheel Shop as a joke, the term was used to “target” individuals and was intended to be “demeaning” and “created sides”. Mr Hansen’s evidence was that the Applicant used the term frequently (as had others) and that he had seen a sign that was held up in the Wheel Shop with the term written on it. Mr Wilson claimed it had been left outside the Team Leader’s office on one occasion, and that the Applicant had found this amusing.46 Mr Hansen’s evidence was that the Applicant had called him an “arse licker” or “licker”.47 Mr Wilson had seen the Applicant mouthing the words to other employees who were in the Team Leader’s office.48

[54] The Applicant also denied any allegation (at least to the best of his recall), made in the course of these proceedings, that he had referred to a sub group of employees as “lickers”. 49 If he had used such words he used them in a context common within the workplace or otherwise as “a bit of a joke”.50

[55] That said, the Applicant's stated position in relation to his admissions had not been consistent over time.

[56] When the Applicant firstly was interviewed and the allegation that he was calling employees “arse lickers” was put to him, he denied any such conduct. 51

[57] Some six weeks later when he was interviewed on 13 October 2009 about the same claims he stated that he did use the term but in a jocular sense only or in response to employees who made such a reference to him. 52

[58] The Applicant explained his initial denial as the result of having been intimidated and scared in the initial interview. 53

[59] Notwithstanding this, the Applicant's support person at the time, Mr Golby, an AMWU Organiser, gave evidence that the Applicant “didn’t appear scared or intimidated by the allegation [that he used the term “arse licker” in the Wheel Shop], it was just that no, he didn’t use it.” 54

[60] In correspondence in response to the show cause letter of 22 February 2010, at which time it must have been abundantly clear to the Applicant that his employment was at risk, the Applicant stated to his employer that he at no stage had he ever denied calling fellow employees “arse lickers” but never used the phrase in a malicious sense. 55 Under cross examination, the Applicant claimed that his statement in this regard, which was patently wrong, arose from an “oversight” on his part.56

[61] The evidence of Mr Golby, who was a witness for the Applicant in these proceedings, was that the Applicant had advised him, immediately prior to the interview in which Mr Golby acted as his support person, that he had never used the term and rejected the allegation that he ever used the term “arse-lickers”. 57 That is, the Applicant did not provide accurate information to his AMWU Organiser.

APPLICANT'S RESPONSE TO THIRD ALLEGATION AND RELATED EVIDENCE

[62] In relation to the third allegation, the Applicant contended that in the course of the subsequent disciplinary meeting of 13 October 2009, he informed the investigators that Mr Browne had sold home-made rum to him whilst at work. 58 He did this because he believed the investigators at the time believed Mr Browne to be “squeaky clean” and more creditable than himself.59

[63] It appears that this specific allegation against Mr Browne emerged from an earlier reference in an interview of 6 October 2009 (conducted by the Respondent's Senior Human Resources Advisor, Ms Laurell McLean for the purposes of providing the employees about whom allegations were made with summary information). At that time the Applicant is said to have commented:

“You have a supervisor on site who regularly brings alcohol on site on a Friday night and sells it.” 60

[64] At that time, the Applicant did not name Mr Browne as the relevant Team Leader, though he pointed to the investigation report in such a manner as to allow Mr Browne’s identity to be disclosed. 61

[65] The allegation (as it came to be expanded upon in subsequent interviews by the Applicant) was related expressly to Mr Browne. It was not alleged that Mr Browne made the rum himself but that Mr Browne had sold the rum at work. 62

[66] The Applicant claimed that upon deciding not to purchase rum from Mr Browne on company premises, Mr Browne had become “snaky” to him. 63

[67] The Applicant claimed that he had not raised this issue in the course of the disciplinary interview gratuitously or to make a formal complaint (as that might also implicate himself). 64 Indeed, the Applicant indicated that he appreciated that selling and buying alcohol on the Respondent’s premises would result in the termination of the employment of the individuals who so engaged in such conduct:

“I knew I would have gotten the immediate sack.” 65

[68] The Applicant contended that he only raised the allegation against Mr Browne at the disciplinary meeting of 13 October 2009, and then for reason that the investigators appeared to view Mr Browne as a more creditable person than himself. 66 This was despite the fact that he had raised the issue (and indirectly identified Mr Browne as being the relevant Team Leader) a week before (shortly after the initial interview of 6 October 2009).

[69] The Applicant thereafter received a request from his employer to attend a meeting (on 30 October 2009) to discuss a victimisation complaint. The complaint was made by Mr Browne and concerned the allegation that he had sold rum on the Respondent's premises (which the Applicant had claimed in his disciplinary interview referred to immediately above). 67

[70] The claim the Applicant is said to have made was recorded by the Respondent (and formed part of the Applicant's evidence) and is as follows:

“Wayne asked me if I wanted to buy rum from him. I bought one lot from him in there. If I get any more, I want to get outside the fence. He did the same thing again (bring it into work). This possibly occurred in March. After that I said no. That’s when he started to get snaky with me. I believe there are several others buying rum from Wayne. I think Wayne’s claims have come out because of me not buying any of his rum.”  68

[71] The Applicant’s supplementary witness statement claimed that Mr Browne had attempted to sell rum to him “at various times”. 69

[72] It appears from the second disciplinary interview (conducted on 30 October 2009) that there were two occasions on which the Applicant alleges that he purchased bottles of home-made rum from Mr Browne. The Applicant's evidence (as it was given on 30 October 2009) was that the first sale of the rum occurred shortly around March or Easter 2009. 70 Some two or three months later the Applicant claimed he was again approached by Mr Browne, to buy some further bottles of home-made rum. The Applicant agreed to the purchase, buying a further two bottles of the rum. Both these transactions occurred in the “smoko” area, adjacent to the workshop. The Applicant stated he paid $15.00 for each bottle of rum in respect of both transactions.71

[73] Some weeks later the Applicant claimed that he was approached by Mr Browne when he stopped by for a conversation in the workshop. At this time the Applicant indicated that he did not wish to purchase any more of the rum because of the risk it posed to his employment. 72 This appears to have occurred on or around July or August 2009.73

[74] During the interview, the Applicant also claimed that after he stopped purchasing rum from Mr Browne, as Mr Browne had changed his work allocations so that he worked in environments in which he (the Applicant) “didn’t like as much as others” and was not as confident. 74

[75] Mr Browne and Ms Horn did not believe that the Applicant had been allocated work with an intention to make him feel uncomfortable or in some manner intimidated. Mr Browne said he did not require people to perform duties on work stations that did not enjoy other than where necessary by way of absences or when he was directed to so. 75 Mr Doherty’s evidence was that he, not Mr Browne, was responsible for allocating workstations at the relevant time and he prepared rosters conscious of keeping the Applicant in areas in which he was “comfortable”.76

FURTHER ALLEGATIONS AGAINST THE APPLICANT, THE WIDER EVIDENCE AND THE APPLICANT'S RESPONSES

[76] At the same interview (on 30 October 2010), the Applicant was the subject to further allegations.

Intimidating conduct

[77] One of these allegations included that the Applicant had conducted himself so as to intimidate or harass Mr Browne. The claims in this regard were as follows, that the Applicant had:

• on or around 7 October 2009 intentionally crossed paths with Mr Browne and given Mr Browne “hostile” and “intimidating” stares;



• had stared over the fence at Mr Browne leaving the Wheel Shop;



• stared at Mr Browne when he was on the phone (the so-called “borer incident”);



• stared at Mr Browne when he was talking to Ms Horn, Manager of the Wheel Shop;



• given Mr Bowne the “evil eye” when he was in the Wheel Shop Office 77; and



• stared at Mr Cooke in a similar way. 78

[78] Mr Doherty gave evidence he had seen the Applicant remove himself from his workstation and stare at Mr Browne with his arms crossed in an aggressive manner for a few second and then return to the workstation. Mr Doherty said he had witnessed this “on a couple of occasions” in relation to Mr Browne principally, but also Mr Cooke. 79 Ms Doherty’s statement to the investigators was to the effect that since the investigation he had seen the Applicant conduct himself in this way in relation to Mr Browne “regularly”.80

[79] Mr Doherty also gave evidence he had seen the Applicant give “the finger” in Mr Browne’s direction whilst in the Team Leader’s office shortly after the first investigation. 81

[80] Ms Horn gave evidence that when she was with Mr Browne she had seen the Applicant staring at Mr Browne as he moved around the Wheel Shop. And that this had been “ongoing” and on a “continuing” basis. 82

[81] The Applicant denied each of these claims, or claimed they were physically improbable given the detail of the allegations, or else held they were otherwise explicable and only misunderstood by Mr Browne. 83

[82] At a further meeting on 1 December 2009, the Applicant had a further set of allegations put to him, which largely concerned his conduct since the investigations had started. These allegations concern whether the Applicant (“after July”) had stared at Mr Cooke on two instances. 84 The Applicant denied any such activities.85 A further allegation had been put to the Applicant that he had stared “coldly” at Mr Browne on 7 October 2009, or thereabouts, and said to him (in reply to his comment “how are you going mate?”):

“There is no mates with you. Not now, not ever, not with me.” 86

[83] The Applicant was also said, over what appears to be the period from October to November 2009, to have intentionally ignored Mr Browne when he made approaches to him and had given him the “middle finger” 87 on multiple occasions (or what was said to have been “fairly consistently”). Other behavioural infractions such as not being responsive to Mr Browne or looking blankly at him during periods of interactions were also alleged.88

Disclosure of confidential information

[84] A further matter was put to the Applicant at the time of the interview. This allegation concerned a claim that on 17 October 2009 the Applicant disclosed to another person at the Rockhampton Speedway, in which derogatory remarks were made about Mr Browne. These remarks were alleged to have been particularly derogatory of Mr Browne (because of the use of offensive descriptive language) and referred to matters alleged to have occurred in the Wheel Shop, including the investigation, which was intended to be confidential.

[85] Though the Applicant did not deny meeting the individual in question at the Speedway, he contended that he did not have a conversation of any substance with him (because the individual was likely to have been intoxicated) and that the individual was arguably a supporter of Mr Bowne’s as they lived in the same area and were “drinking mates”. 89

Wider allegations

[86] The Applicant also denied any other allegations made about his involvement in any other actions taken against Mr Browne purposefully “to cause him grief”, in effect.

[87] Specifically, as best I can collate the Applicant's responses:

• he denied any knowledge prior to these proceedings that a dead magpie had been placed in Mr Browne’s utility tray;



• did not know that Mr Browne’s car had been egged;



• did not bully other employees or act to dissuade them from working cooperatively with management;



• did not threaten to have “roofs rocked”;



• did not without good reason approach managers other than the Team Leader (Mr Browne);



• had not acted in any insubordinate ways or participated in any other incidents to which the Respondent had referred;



• did not denigrate other employees; did not stare but did “like to know generally where all the bosses are”, or “blue shirts” as he “sometimes” referred to them as. 90

[88] Ms Horn’s evidence was that she had attended toolbox meetings in the past (in 2007) at which the Applicant had attributed the poor performance of the Wheel Shop to the Team Leader, and had discussed the appropriateness of such an approach with the Applicant subsequently. Ms Horn also stated that the Applicant, in 2008, had given evidence of fostering disharmony in the workplace by criticising management remuneration and speaking in critical terms about the Respondent's work environment (which he described as “shit work”) and stated that he intended to obtain work elsewhere.

[89] Mr Misztal at the time was said have commented that Ms Horn should not worry about the Applicant as “he has always been a mouth”. 91 Ms Horn also gave evidence that the Applicant had given “grief” to Mr Browne at toolbox meetings by making comments that were designed to embarrass or cause discomfort to Mr Browne.92

[90] Mr Cooke gave evidence that he was informed by two employees in late September and October 2009 that the Team Leaders were being targeted over the investigations, with the Applicant being a person potentially active in this regard. 93 Mr Hansen, a Labourer in the Wheel Shop, said that he had heard from other employees that there was to be a witch hunt of some kind and that he had warned both Mr Browne and Mr Cooke. His statement to the investigators did not reveal that he believed the Applicant was involved in the threatened conduct.94

[91] The Applicant also denied being involved in any “witch hunt” to identify or to act in any detrimental way in relation to any employee who had provided evidence the Wheel Shop investigation. 95 Mr Misztal (AMWU Convenor) and Mr Green (AMWU delegate) were not aware of any “witch hunt” either, and had heard no rumours to that effect.96

[92] A further allegation was put to the Applicant and this concerned inappropriate conduct on an occasion that Ms Horn, at a time when Ms Horn was inspecting graffiti in the male urinal. Ms Horn claimed that the Applicant had intentionally entered the urinal and commenced to urinate in the course of her inspection (which was carried out in the company of Mr Browne).

[93] Ms Horn stated that the Applicant had watched her as she stood outside the urinal while Mr Browne had checked to see if the facilities were free of any users. The implication of Ms Horn’s evidence appears to be that the Applicant had entered the urinal to cause embarrassment. 97 This claim was similar to Mr Browne’s construction of the incident.

[94] The Applicant contended that the incident was unintended and that he was embarrassed by the Ms Horn’s presence in the toilet.

[95] The Applicant also denied any involvement in a prank against Mr Wilson, another Team Leader, which involved exposing the wires a severed power cord from a microwave which he commonly used, whilst other employees looked on. This incident was referred to in passing above. Mr Wilson was distressed significantly by the incident, which appears to have been a contributing stressor in relation to his subsequent lapse in health. 98

[96] The evidence of Mr Misztal in these proceedings was that were quite some measure of tension at various times in the Wheel Shop. Some of this tension arose over the conduct of one Team Leader, Mr Wilson, who was said to have had what could have been described as an abrasive management style. A memorandum was written up about the employee’s concerns with Mr Wilson and Mr Misztal (as AMWU Convenor), discussed the matter with the Workshop Manager, Ms Horn. On another occasion, Mr Misztal contended there was an employee vote of no confidence in management. 99

[97] Mr Mizstal also gave evidence that another manager, Mr Barry Butterfield, also had an abrasive management style, and that the level of tension in the Wheel Shop had decreased with his departure. 100 The level of tension was also said to have decreased for reason that the Respondent had introduced some changed practices to the range of matters dealt with at toolbox meetings and this had led to a decline in personal confrontations in the workplace.101

[98] Mr Misztal gave evidence that he was unaware of any core group of employees acting in an intimidating manner towards other employees. Equally so, however, Mr Misztal was not aware of any tension in the relationship between Mr Browne and the Applicant. 102

[99] Mr Keith Bristow in his interview with the investigators stated as follows:

“31 July 2009 was a fair while ago. A lot of things happen over there. I can recall one particular incident but I think both sides were the same. I recall Wayne and Shane having a verbal altercation at one time but I think that they were equal. If that is the time you are talking about, I don’t recall any swearing at all. I recall them saying words to the effect of “if you want to be nasty, I will be nasty back” or “if you pull my nose I will yours”. They may not have used those exact words, that is my interpretation of the conversation. I don’t take much notice of what goes on over there, it always goes over my head. I came in at the back end of the conversation I do not know what it was about.

I wouldn’t call it an argument, I would say that it was just an exchange of words. I thought I had just come in at the tail end of a discussion that they were having. I wouldn’t say it was heated, I just came in at the end of and then it was all over, basically. I don’t know what the reason was for it.

As for specifics, on any given day, I have a memory like a sieve. I get called a lot of things too, it goes straight over my head.” 103

[100] Clearly, Mr Bristow’s evidence (which I referred to above briefly at paragraph 49) on his own admission must be treated cautiously.

[101] Ms Horne’s evidence extended to a recollection of an incident on 28 October 2009, in which the Applicant sought to speak privately with Ms Horn and would not speak in the company of Mr Browne, or would only do so if a support person was present. When Ms Horn did speak to the Applicant privately, the Applicant made claims that Mr Browne had improperly implemented a work review. Ms Horn explained that Mr Browne had done so at her direction. Ms Horn queries the Applicant's distrust of Mr Browne given that Mr Browne had sometimes spoken positively of the Applicant in production meetings. 104 The Applicant harboured an underlying distrust of Mr Browne nonetheless and stated in effect, according to Ms Horn, that:

“I don’t care. I can’t trust him. He is nothing but a snake.” 105

[102] The Applicant contested such claims.

CONSIDERATION

[103] Section 387 of the FW Act reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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 matters that FWA considers relevant.

Section 387(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)

[104] While there are a number of allegations made in relation to the Applicant, as set out above, I will consider initially one in particular; the allegation that the Applicant misled his employer about Mr Browne’s involvement in the sale of rum on the Respondent's premises.

[105] Before doing so I make clear there are a very wide range of behavioural issues within the Wheel Shop, the allegations against the Applicant must be evaluated on their own merit. Care must be taken, in particular, not to accord inappropriate weightings to the Applicant’s conduct (as may be found) for reason that have been set within a wider behavioural narrative which itself has not been objectively scrutinised.

Rum sale allegations

[106] The Applicant’s claim that he had been sold rum on the premises by his Team Leader and his Team Leader’s subsequent claim that the Applicant was victimising him was a central feature of these proceedings, particularly in so far as the representatives strove to inform the critical fact finding task that is before me.

[107] The Applicant’s evidence in my view gives rise to difficulties with his claim that Mr Browne was selling rum on the work premises. For reasons of clarity I have set these various difficulties out below under separate subject headings, though there is an evidentiary overlap between subjects.

Consistency of claims - 6 October 2009 claim

[108] The Applicant made two claims against Mr Browne. The first of these was that Mr Browne sold rum on Friday nights on the Respondent's premises. 106

[109] The second was that he attempted to sell him rum on three occasions (and actually sold rum to him on two occasions). In respect of the latter claim, the Applicant claimed that he purchased rum from Mr Browne early in the mornings when he sat outside as part of his morning routine, and subsequently sought to sell him rum on a third occasion from the Wheel shop floor itself.

[110] The Applicant never claimed Mr Browne had sold him rum on Friday nights, though he did not make this point when he first raised the issue with the Respondent on 6 October 2009. 107

[111] The Applicant led no evidence about any other transactions involving him or anyone else that were within his knowledge in respect of the Friday night sales allegation. This is despite the Applicant elsewhere declaring that “there were certain people on the floor I believe were buying rum off” Mr Browne. 108 The Applicant never gave evidence as to the identity of these “certain people” as he might have believed them to be, or whether they were involved in any Friday night purchases.

[112] Subsequently, the Applicant did, however, indicate to the Respondent that it was Mr Browne who was allegedly selling rum on Friday nights. 109

[113] Once having made his claim about Mr Browne selling rum on Friday nights, the Applicant did not return to his claim to press it further, or seek to particularise it in any way. Indeed, that allegation appears to have ceased to be agitated in any way by the Applicant after it was raised.

[114] Curiously, the Applicant appeared at cross examination briefly to deny that he ever made a claim that Mr Browne sold rum on the Respondent's premises on Friday nights, although it patently formed part of his comments to the investigators on 2 September 2009 110:

“Why did you tell Butterfield it was happening on a Friday night, other than what you've told us, that that was what you'd heard?---That's the only - I didn't tell him that - I'm sure I didn't tell him that it was happening on Friday nights, or did I? I did tell him.

I read it to you before and you agreed, I thought, Mr Murphy. You said, "You have a supervisor on site who regularly brings alcohol on site on a Friday night and sells it"?---Well, then he would have known that that's what I said, if that's been the case.” 111 [my emphasis]

[115] At this juncture the Applicant appeared to distance himself from his claim or else (at best) had fallen into confusion as to what claim he actually made on 6 October 2009 to the investigators.

[116] In all, the claim that Mr Browne was selling rum on a regular basis on Friday nights to certain people does not appear to be genuine. This is because the Applicant effectively vacated his claim so quickly and did not return to it, appeared to distance himself from his own evidence and came to rely instead on another claim concerning his own personal experience.

Consistency of claims - source of rum

[117] The Applicant's claims to the disciplinary interview on 30 October 2009 were to the effect that he did not know the source of the rum that Mr Browne was said to be supplying:

“Shane does not know whether Wayne made the rum himself or was getting it from somewhere else.” 112

[118] However, under cross examination, the Applicant claimed that he had knowledge of the source of the rum:

“And he told you it was homemade rum that he drank that weekend?---Yes. He'd said he was given it at the right price, and he said, "Do you want some?" and I said, "Yeah, okay."

So he said he was buying homemade rum for his own consumption, was he? Is that - - -?---No. Yes, he knew a bloke who was making it, I think, or something like that, or he had some, or he knew a bloke who was making it. I didn't go into the finer points of it, and he said, "I'll get you some." I said, "Okay, that will be great." 113

[119] That is, when interviewed as part of the investigation the Applicant claimed he had no knowledge of the source of the rum (that is, whether Mr Browne made it himself or whether he bought it). But for purposes of these proceedings the Applicant claimed the source of the rum had been disclosed to him by Mr Browne (who was said to have been buying it from another “bloke”, the distiller).

Chronological inconsistencies

[120] There are discrepancies in the Applicant’s chronology as to the various transactions with Mr Browne as he alleged.

[121] At the 30 October 2009 disciplinary interview 114, the Applicant explained to the Respondent that he “first bought rum from Wayne around March or Easter 2009 and two or three months later bought a second lot.115 The rum that was “first bought” was $15.00 per (glass) bottle and was wrapped in newspaper and placed in a blue plastic bag, inside a green shopping bag (the Applicant offered the bottles for finger printing purposes to the Respondent).116

[122] I note that the allegation made at this time (in the second disciplinary interview) was evidence given in late October 2009, which would be about three months earlier or so from the second transaction (as here alleged).

[123] The record of the disciplinary interview of 13 October 2009 117, however, indicates, arguably, that the Applicant stated that he “possibly” bought the second supply of rum from Mr Browne in “March” 2009.118 That is, he did not purchase it two or three months after the first purchase as alleged above.

[124] In his witness statement, the Applicant stated that:

“I think in hindsight it was the week before Easter that I first bought the rum because I remember drinking rum at Easter.” 119

[125] Under cross examination, however, the Applicant claimed that the first rum sale transaction occurred in February or March 2009 and that the second transaction was conducted before Easter 2009, only a few weeks later. That is, rather than being separated by two or three months, as was his evidence in the second disciplinary interview, the second transaction was now said to have occurred only a few weeks after the first transaction. 120

[126] The Applicant acknowledged this inconsistency at cross examination and contended that the reference to “first bought” in his disciplinary interview, on which he had relied to this point, must have been wrong and that he had difficulty “keeping track of time” and that was just the way he was. 121

Discrepancies in transaction details - bottle types by transaction

[127] During cross examination the Applicant (at one stage) gave evidence that the rum he first bought cost $15.00 per bottle. There is further discussion of this evidence below. 122 This was consistent with his evidence given at the second disciplinary interview.123

[128] The disciplinary record demonstrates that the Applicant was referring to glass bottles that were wrapped in newspaper and placed in a blue plastic bag inside a green shopping bag. It was these bottles that the Applicant claimed to have costs $15.00 per bottle. 124

[129] Under cross examination, once the Applicant revealed that there were two purchases - one of two x 2-litre plastic coke bottles and the other of two x 40 ounce glass bottles (which appears to be about 1.2 litres). 125

[130] The plastic bottles were not wrapped. 126

[131] The Applicant stated in cross examination that he bought the plastic bottles firstly and the smaller glass bottles on the second transaction. 127

[132] This claim is not consistent with his evidence at the disciplinary interview, as set out above, in which he refers, as the first purchase, to glass bottles only (which were wrapped in newspaper etc).

[133] The Applicant claimed under cross examination that he might have “buggered” his evidence up in regard to times and dates in relation to which bottles were purchased when. 128

Discrepancies in transaction details - price of rum

[134] As explained above, the Applicant claimed under cross examination that the first transaction consisted of the purchase of two x 2-litre bottles of rum in coca-cola sized plastic containers and then two x 40 ounce glass bottles.

[135] The Applicant amended his previously general evidence that the bottles, in a generic sense, cost $15.00 each or $30.00 for two. He subsequently amended his evidence in cross examination, claiming that the smaller glass bottles (which he bought second) cost $15.00 each. He said he paid $20.00 for 2-litre plastic bottles (which represented the first purchase - at least as claimed under cross examination).

[136] Prior to this information being provided in cross examination, the Applicant had at all other times stated that he had paid $15.00 per bottle for the rum (and no mention had been made of 2-litre plastic coke bottles of rum, let alone price variation). 129

[137] Nothing of great substance was made in the evidence about Mr Browne’s pricing policy in respect of the significant volume difference between the 2 litre bottles and the 40 ounce bottles (for which Mr Browne only charged $5.00). 130

[138] As with the issue of time and dates about which bottles were purchased when (see above), the Applicant claimed he might have “buggered” up his evidence about the pricing of the bottles of rum and which bottles he bought firstly. 131

[139] Indeed, the Applicant appeared in a state of confusion in regard to his evidence concerning both the order of the purchases and the price of the bottles:

“So you got the price wrong as well. Is that right?---It's all - like, I don't know what's going on in here. Whether I've got the plastic after. I'm sure I got the plastic before it, before the glass.” 132

Discrepancies in relation to time at which Mr Browne became “snaky” with the Applicant

[140] In the first disciplinary interview the Applicant stated as follows:

"Wayne asked me if I wanted to buy rum from him. I brought one lot from him in there. If I get any more I want to get it outside the fence. He did the same thing again, bringing it into work. This possibly occurred in March. After that I said, "No." That's when he started to get snaky with me.” 133

[141] The Applicant claimed in the 30 October 2009 disciplinary interview that he “thinks” that Mr Browne’s attitude changed “around July or August” 2009. 134

[142] The Applicant stated in his cross examination that he informed Mr Browne after the second transaction, which involved the purchase of the two glass bottles (purportedly) that he did not want to buy any rum “inside” any longer and after that time (the second transaction) Mr Browne became “snaky” with him. 135

[143] If this is so, then the Applicant must be referring to a date before Easter 2009 (as that was the date the Applicant claimed in cross examination was the time at which of the second transaction). 136

[144] Later when questioned, the Applicant claimed it might have been a week or a fortnight later or “whatever it was”. 137

[145] When the above discrepancies in his chronology in relation to when Mr Browne had become “snaky” with him were brought to his attention, the Applicant’s response was to claim again that it appears that he if he has “buggered the dates up” he would offer an apology. 138

[146] At a subsequent point in his examination, the Applicant stated that he informed Mr Browne that he did not want to purchase any more rum during a third occasion when Mr Browne offered to sell rum to him at work.

[147] It appears that Mr Browne’s alleged “snaky” behaviour towards the Applicant commenced after this, the third occasion, which was the occasion at which the Applicant stated to him (for the final time) that he would buy no more rum from him. The reason I say this is because the Applicant gave the following evidence in relation to the third occasion on which Mr Browne sought to sell him rum:

“So there was a third occasion on which - what happened? Do you recall?---I think I was on the bearings-off. He said, "Do you want any more of that rum." I said, "No." He said, "What's up your arse?" Something to that effect, that sort of thing.” 139

[148] According to the Applicant, this third occasion could have been weeks or months after the second (pre-Easter) transaction discussed above. 140

[149] Equally so, according to the Applicant when he was further cross examined on the point, the third occasion “could have been” close to the time at which the Applicant spoke to the investigators, which was in September 2009, though the Applicant qualified this response by again stating that:

“You can't tell us when that third occasion might have been?---No, I haven't got a clue.

Might have been weeks, might have been months. The second occasion, according to your statement to the investigators in November - the second occasion might have been July or August?---I really can't - I can't put a date or a time on it. I'm buggered if I know.

In which case, it might have only been very recently, this third occasion, prior to speaking with the investigators, mightn't it?---It could have been.” 141

Discrepancies in relation to what was said to Mr Browne to make him “snaky”

[150] The Applicant contended that the only explanation he could think of as to why Mr Browne had raised with the investigators a series of complaints about his (the Applicant's) conduct was that he had informed Mr Browne he would not purchase rum from him any longer.

[151] The precise nature of the Applicant’s evidence is uncertain as to whether he stated to the Browne that he would no longer purchase rum on company premises or would no longer purchase rum from him period.

[152] For the most part, the Applicant contended that he informed Mr Browne that he would not make any more purchases on the company premises or “inside”. For example, in his statements in the disciplinary interview of 30 October 2009, the Applicant contended that when Mr Browne attempted to sell rum to him on a second occasion, the Applicant claimed he said “I told you I do not want it here.” 142

[153] But under cross examination, his evidence became more equivocal:

“But you've said that after the second transaction you'd said, "I don't want it inside any more"?---That's correct.

Not, "I don't want it any more"?---Whatever I - I'm pretty sure I said, "I don't want it inside any more," or, "I don't want it," or something to that nature.

So Mr Browne's reason for getting snaky with you, such as to change the whole relationship between you, is because you hadn't said, "I don't want to buy your rum any more." You'd said, "I don't want to buy your rum inside any more"?

---Well, you might be right in saying, "I don't want to buy your rum any more." That might - been what I said.

It's your evidence, Mr Murphy. What is it?---Well it was long ago now, and I've got this much paperwork in front of me; I get a bit muddled up with it.” 143

[154] Doubt about the authenticity of this evidence is compounded by its context. That is, in respect of the second transaction, the Applicant is said to have been offered an opportunity to buy further rum and despite his apparent concerns about the Respondent’s policies says “Righty-o”. 144

[155] This does not appear to be a response from a person concerned about the propriety of the transaction and the jeopardy in which it placed his employment.

[156] When Mr Browne allegedly brought the product in to him the next day, the Applicant accepted the rum but purported to state upon accepting it:

“I told you I do not want it here.” 145

[157] If this is what the Applicant had said to Mr Browne, then he might reasonably have been expected to place a condition on the purchase (such as buying it outside the Respondent's fence) rather than simply saying “Righty-o” at first instance. Indeed, if his concern was as he stated, he might reasonably have been expected not to have accepted the rum at all on the second occasion at all.

[158] Generally, I observe that the language through which the Applicant reconstructs the communications that led to the second transaction is based on disjunctive contexts (one bereft of concern for consequences and the other sensitive to risks). This is uncommon in natural or authentic communications between persons and suggests that the exchange between himself and Mr Browne was other than as represented by the Applicant.

Discrepancies in transaction details - location of purchases\offers

[159] The Applicant's evidence in relation to the location at which the transactions took place also varied over the course of the cross examination. The second transaction was initially said to have occurred in the Wheel Shop. 146 Later in the cross examination the Applicant claimed that the second transaction occurred in the smoko area.147

[160] Overall, when these discrepancies in the Applicant’s evidence (relating to the cost of the rum and the applicable chronology etc) were brought to his attention, he contended that his evidence as given to the investigations team must have been incorrect and\or that his retention levels were poor in that he could remember no dates or nor could he establish an accurate chronology for the transactions he alleged took place. This is notwithstanding that the evidence given in respect of the investigation was only some few months after the events, whilst the evidence given at the hearing was almost a year later.

Confidentiality of transactions

[161] The Applicant also claimed, during cross examination, that after the first rum transaction, Mr Browne told him to “keep a lid on it”, because of the risk to which the sale of alcohol placed their employment with the Respondent. 148

[162] Indeed, the Applicant was of the view that having alcohol on site was a dismissible offence and that if caught “he would have gotten the immediate sack.” 149

[163] The Applicant also claimed, however, that “because having alcohol at the site is a breach of QR’s policy, people are pretty secretive about it.” 150

[164] Indeed, such was the degree of risk that after the first transaction the Applicant informed Mr Browne that he did not wish to purchase any more rum “inside the fence” of the Respondent’s site. Notwithstanding, the Applicant proceeded to purchase the rum on that occasion. Similarly, when Mr Browne again proposed the purchase of further rum, the Applicant expressed his concern that the sale should be conducted outside the Respondent's premises, but proceeded to buy the rum nonetheless. 151

[165] It was not, according to the Applicant, that Mr Browne attempted to sell rum to him on the third occasion that he refused the purchase on the basis of the risk at which it placed his employment. It was his insistence on the impropriety of the transactions, it appears 152, that led the Applicant to believe that this was the reason that Mr Browne had made allegations against him.

[166] As suggested above, the element of risk, in the Applicant’s view, was significant in each of the transactions and warned Mr Browne to this end. He agreed that if the transactions were disclosed to the Respondent, dismissal would immediately follow. This is why he claimed that Mr Browne had asked him to “keep a lid on it”.

[167] Notwithstanding, the Applicant was of the view that Mr Browne’s role in selling rum at work was “common knowledge”. 153 Moreover, when the transactions were being discussed and completed, the Applicant was of the view that as the smoko area was a “high traffic” area, and that there may have been others present (though he could not recall with any accuracy).154

[168] It is somewhat difficult to reconcile the secretive and clandestine nature of the alleged transactions with the open nature of their discussion and execution and the “common knowledge” that was apparently held in the workplace that Mr Browne was selling rum.

[169] Furthermore, given the apparent extreme consequences of selling rum on site as the Applicant alleged, it seems implausible that either the Applicant or Mr Browne would ever have conducted the transactions on site when they could simply have made the exchange, say, at lunch time from their motor vehicles, which are parked nearby (which was evident from the site inspection).

[170] Passes were available for employees to leave the office at lunch times. Mr Misztal (the AMWU Convenor) volunteered that he left the premises at lunch time to buy discounted beer locally, which he left in his vehicle. 155 Mr Browne as the Team Leader was aware of access to passes, and had left the Respondent's premises at lunch times in the past.156

Mr Browne’s response to the rum allegations

[171] Mr Browne for his part contended that he was “astounded” when he was informed of the Applicant’s claims as set out above.

[172] Mr Browne claimed he had very limited exposure to rum, but did recall mentioning to the Applicant, amongst others, one day that he had been offered a “jug” of bad tasting rum for helping a neighbour (the husband of whom had recently deceased). He did not accept the rum (a matter attested to by both Mr Browne’s wife and the person who offered the rum to Mr Browne).

[173] According to Mr Browne, this discussion occurred on or around July 2009. After discussing this with a group of employees at a smoko, the Applicant had commented to Mr Browne that he would take it off his hands if he did not want it. Mr Browne had rejected this proposal as the rum was not in his possession. 157

[174] Ms Margaretta Verkerk was the neighbour who (Mr Browne claimed) offered him the home made rum. Her evidence was that Mr Browne had helped her following the death of her husband and she had offered to give an amount of her late husband’s home-brewed rum to Mr Browne, on or about June 2009 at the time of a garage sale she had conducted with Mr Browne’s help. Ms Verkerk did not believe that Mr Browne had taken the rum. This evidence, which went unchallenged, accords with Mr Browne’s evidence. 158

[175] Ms Verkerk also gave evidence that her late husband’s rum was kept in a secure part of her house in a locked room, and that her house itself was guarded by five dogs. The effect of this evidence was to suggest that Mr Browne, on any reasonable view, could not have secured access to the home made rum such that he could have been selling supplies to multiple people (or co-workers). 159 This is pertinent in so far as the Applicant had contended Mr Browne had possession of multiple bottles of rum, four of which (it appears) Mr Browne had sold to him. The Applicant also stated in his record of interview that Mr Browne had offered to sell him subsequent supplies as well.160

[176] Ms Horn, for her part, said she had never heard of any rumours about selling rum. 161 Nor had Mr Cooke.162 Mr Hansen, a Wheel Shop Labourer, said he had heard of no rumours about the sale of rum, by Mr Browne or anyone else.163 Mr Wilson knew of no rumour to the same end.164

Evaluation of the Applicant’s conduct in relation to the run allegation

[177] In all, I am not persuaded that the Applicant’s claim that Mr Browne sold rum to him on the Respondent's premises is credible. The Applicant's evidence is replete with inconsistencies and implausible scenarios (which I have set out above) such that it leads me to conclude that his claims - as they evolved from 6 October 2009 - on the balance of probabilities are fabricated. 165 It follows, too, that the Applicant misled his Employer in the course of an investigation.

[178] I note, too, that his evidence in respect of his claim to never using the term “arse lickers” in the workplace also was subject to effectively self-admitted inconsistencies, which give me further cause to be concerned by genuineness of the evidence the Applicant has given in these proceedings generally. I have set out the evidence in this regard earlier.

[179] I have reached the conclusion that the Applicant has fabricated his allegations against Mr Browne even after I have made as much concession as I can for the Applicant's habit of mind, if I can call it that, of not retaining information or recounting details in a structured way (that is, in continuous narrative or in chronological order). At a critical point, the evidence must pass from being casually and informally recollected or recounted (which may explain deviations and discrepancies etc whilst retaining its core elements) to where it is simply not credible as a whole. For the reasons discussed above, the Applicant's evidence well passed this critical point, in my view.

[180] I am fortified in my conclusions in the regard by Mr Browne’s evidence, which I found by comparison to be consistent and authentic, and which formed a coherent narrative.

[181] That all said, it does not follow, inexorably, that the making of a fabricated claim in its own will jeopardise the employment relationship to such an extent that it provides a valid reason for the dismissal of the Applicant from his employment; wider circumstances need to be considered. That is, while I have concluded that the Applicant fabricated a claim against a co-worker and knowingly misled his employer in an investigatory process in which it would be ordinarily expected that he would be truthful, does his conduct within the circumstantial milieu in which it took place warrant a finding that the employer possessed a valid reason for the dismissal?

[182] There may be circumstances in which dishonesty within an investigation process might give not give rise to a finding of there being a valid reason for the dismissal. An employee might have acted spontaneously (perhaps within a heated moment) and have moved quickly to retract an unfounded allegation; the allegation may have been innocently made (perhaps on the basis of misinformation or a misunderstanding); or else the allegation may have been of modest material consequence. There may be other examples.

[183] In all such circumstances, the impact upon the trust and confidence that underpins the employment relationship might be said to have been so limited that the relationship is able to be sustained on a continuing basis, despite some degree of stress.

[184] The wider circumstances that are relevant as I see them in this case are these:

• the Applicant did not make his claims spontaneously or in an emotionally intense or confused moment;



• the claims evolved over a period time and were never withdrawn;



• the Applicant deliberated over whether he would make the claims and sought the advice of support people, but made the claims nonetheless;



• the Applicant was informed by the interviewers that the claims were serious claims and whether he wished to press his claims formally, which provided him, effectively, with an opportunity to withdraw his allegations or reflect on the course he was embarking upon before he proceeded further 166;



• the Applicant maintained the claims though he knew that their truthfulness was questioned by his employer;



• the Applicant made the allegations for a particular purpose which was to discredit Mr Browne;



• the Applicant claimed he knew that the sale of rum on the premises may result in disciplinary action leading to termination of employment, and, by implication, that the allegation if accepted may have had adverse consequences for Mr Browne;



• the Applicant was advised, as part of the investigatory process, of the meaning of victimisation; and



• the Applicant was aware of the relevant workplace policies, including the prohibition in relation to making vexatious claims (which arguably might be said to have been imported into his contract of employment. 167

[185] On the basis of the above considerations, it appears to me that the Applicant knowingly misled his employer, and did so in circumstances in which he acted deliberately to damage or discredit Mr Browne’s reputation, if not more by consequence. In by doing so in the circumstances I have set out, the Respondent had a valid reason for the termination of the Applicant's employment.

[186] Having so found, and in the context of the findings below, I am not of the view it is necessary for me to consider the further allegations made against the Applicant for the same purpose as s.387(a) of the FW Act requires.

(b) whether the person was notified of that reason

[187] The decision to terminate the Applicant's employment was subject to a rich process involving two investigations and multiple meetings, and show cause exercises. The Applicant was at all times aware of the reasons for which his employer was considering terminating his employment, including that it was misled in relation to Applicant’s claims against Mr Browne. The references to the claim of a vexatious complaint having been made against Mr Browne was mentioned more obliquely in the show cause letter of 22 February 2010 than it was in the disciplinary interview of that same day 168, but it cannot be substantiated given the history of the proceedings that the Applicant could reasonably have been confused or unaware as to what issues had led to this juncture and what issues have aggrieved his employer.

[188] In any event, at the time of these proceedings, the Applicant made it abundantly clear that he understood that one of the allegations he faced concerned the claim that he had fabricated his evidence in the course of an investigation. 169

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[189] The Applicant was provided with an opportunity to respond to the show cause notice on 22 February 2010, as cited above. The Applicant provided a response to the show cause notice. 170 The Applicant was also subject to numerous investigation interviews and disciplinary step interviews at which his responses to all allegations were sought.

(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

[190] No issue arises in respect of this matter: the Applicant was assisted by a support person over the course of the investigatory and interview process

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[191] The Applicant’s employment was terminated for reason of conduct, and therefore issues of performance are not relevant to my considerations.

(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

[192] The size of the employer’s enterprise did not impact in any relevant way upon the decision making in relation to the decision to terminate the Applicant's employment.

(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

[193] No issue arises in this matter in relation to the absence of dedicated human resource management specialists or expertise in the employer’s enterprise. This is because the employer did not want for such resources.

(h) any other matters that FWA considers relevant

[194] The Applicant was a long serving employee of the Respondent, and there is no formal record of him having been subject to any disciplinary action prior to the circumstances set out above.

[195] The Applicant is currently 46 years old. His two sons have moved out of home and he lives with his partner of 10 years.

[196] The Applicant has put to me that his livelihood and general well being have been affected significantly by the decision to terminate his employment. He has not been successful in securing alternative permanent employment, despite his trade qualifications. 171

[197] It does appear, however, that the Applicant very recently obtained full time work for a fixed period of seven months. 172

CONCLUSION

[198] Section 387 of the FW Act requires that I reach a view as to whether the decision to terminate of the Applicant's employment was harsh, unjust or unreasonable.

[199] I have set out the various issues as I have found them to be made out in the evidence above.

[200] In my view, the Applicant’s conduct as I have found it to be and putting aside his long serving role with the Respondent and the various other allegations that were raised, was such that that he undermined the trust and confidence his employer must have in him as an employee to a critical degree. The Applicant's conduct was wilful and deliberate in its intended goals, and demonstrated that he was prepared to go to unusual lengths to damage the reputation of a co-worker, in this case his Team Leader, Mr Browne. Further, the Applicant, because he fabricated a serious allegation against a co-worker, was dishonest with his employer within an investigatory process in which he would have been expected to be candid and truthful.

[201] Because of this, I am not of the view that the Applicant was dismissed from his employment on terms that could be described as being harsh, unjust or unreasonable.

[202] In view of these conclusions, I therefore dismiss the Applicant's application for an unfair dismissal remedy under s.394 of the FW Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms L Weber of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union for the Applicant

Mr A Horneman-Wren of Senior Counsel instructed by Corrs Chambers Westgarth for the Respondent

Hearing details:

25, 26 and 27 August 2010

1 September 2010

 1   Statement of Shane Murphy dated 15 June 2010 at PN 2

 2   Statement of Shane Murphy dated 15 June 2010 at PN 3

 3   Submissions of the Respondent filed on 19 July 2010 at PN 3.2

 4   Statement of Tony Gassman dated 20 July 2010 at Exhibit “TG3”

 5   See the Applicant’s letter of termination dated 5 March 2010 (Witness Statement of Tony Gassman dated 19 July 2010 at Exhibit “TG-5”)

 6   Statement of Michelle Horn dated15 July 2010 at PN 13

 7   Statement of Michelle Horn dated15 July 2010 at PN 18 and Exhibit “MH2”

 8   Statement of Michelle Horn dated15 July 2010 at PNS 11, 16-17

 9   Statement of Arnold Doherty dated 15 July 2010 at Exhibit “AD-1”; Statement of Donald Wilson 15 July 2009 at PN 9

 10   Statement of Michelle Horn dated15 July 2010 at PN 9

 11   Statement of Michelle Horn dated15 July 2010 at PN 9

 12   Statement of Arnold Doherty dated 15 July 2010 at PN 6

 13   Statement of Arnold Doherty dated 15 July 2010 at PNS 7-8

 14   Statement of Donald Wilson dated 15 July 2009 at PNS 8 and 16, 17, 19 -23 and see Exhibit “DW-4” generally

 15   Statement of Donald Wilson dated 15 July 2009 at PNS 27-28

 16   Statement of Wayne Browne dated 16 July 2010 at PNS 10, 14-15; Statement of Ricky Cooke dated 16 July 2010 at Exhibit “RC-1” at PNS 18-20; Statement of Arnold Doherty dated 15 July 2010 at PN 10

 17   Statement of Ricky Cooke dated 16 July 2010 at PNS 2-3 and Exhibit “RC-1” at PNS 9-10, 18-23; Statement of Wayne Browne dated 16 July 2010 at PN 18 and Exhibit “WB 2” at PNS 26-28

 18   Statement of William Hansen dated 14 July 2010 at PN 7-9

 19   Statement of Wayne Browne dated 16 July 2010 at PNS 12-13

 20   Statement of Wayne Browne dated 16 July 2010 at PN 16

 21   Statement of Wayne Browne dated 16 July 2010 at PN 18 and Exhibit “WB 2” at PN 23

 22   Statement of Donald Wilson dated 15 July 2009 at PN9(b)

 23   Statement of Wayne Browne dated 16 July 2010 at PNS 18, 26(k) and Exhibit “WB 2” at PNS 20-22

 24   Statement of Donald Wilson dated 15 July 2009 at PN 10(d)

 25   Statement of Wayne Browne dated 16 July 2010 at Exhibit “WB-2” at PN 5

 26   Submissions of the Respondent filed on 19 July 2010 at PNS 3.3(b) and (c)

 27   See paragraph 11 of this decision

 28   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM23” at Allegation 12

 29   Statement of Ricky Cooke dated 16 July 2010 at Exhibit “RC-1” at PNS 12-16 and 23

 30   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-3” at PN 7

 31   Statement of Wayne Browne at Exhibit “WB -2” at PN 17

 32   Statement of Wayne Browne Exhibit “WB -2” at PN 17

 33   Statement of Wayne Browne Exhibit “WB -2” at PN 18

 34   Statement of Wayne Browne Exhibit “WB -2” at PN 18

 35   Statement of Tony Gassman dated 20 July 2010 at Exhibit “TG2” at PNS 49 - 53

 36   Statement of Shane Murphy dated 15 June 2010 at PN 23

 37   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-3” at PN 7

 38   Statement of Shane Murphy dated 15 June 2010 at PN 23

 39   Transcript of Proceedings at PNS 1688-1690

 40   Statement of Ricky Cooke dated 16 July 2010 at Exhibit “RC-1” at PNS 17-18

 41   Statement of Shane Murphy dated 15 June 2010 at PN 27-29’ Statement of Angela Petie dated 16 July 2010 at Exhibit “AP-2” being the External Investigation Summary Report dated 16 September 2009 at PN 11(a)

 42   Statement of Lee James Graham dated 15 June 2010 at PN 12

 43   Statement of Gary James Green dated 15 June 2010 at PN 13

 44   Statement of Arnold Doherty dated 15 July 2010 at PN 10

 45   Statement of Wayne Browne dated 16 July 2010 at PN 25(c)

 46   Statement of Donald Wilson dated 15 July 2010 at PN 15; Statement of William Hansen dated 14 July 2010 at PN 10(a) and Exhibit “WH-1” at PN 16-18d in relation to one occasion where this terms was used in jest

 47   Statement of William Hansen dated 14 July 2010 at PN 10(c)

 48   Statement of Donald Wilson dated 15 July 2010 at PN 13

 49   Supplementary Statement of Shane Murphy dated 22 July 2010 at PN 2(g)

 50   Supplementary Statement of Shane Murphy dated 22 July 2010 PN 2(g)

 51   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-3” at PN 11

 52   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-9”

 53   Statement of Shane Murphy dated 15 June 2010 at PN 26

 54   Transcript of Proceedings at PNS 1548- 1557

 55   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-25”

 56   Transcript of Proceedings at PN 142

 57   Transcript of Proceedings at PNS 1545-1548

 58   Statement of Shane Murphy dated 15 June 2010 at PN 49

 59   Statement of Shane Murphy dated 15 June 2010 PNS 48 and 54; Statement of Bernard Stephen Misztal dated 11 June 2010 at PNS 16-17

 60   Statement of Laurell McLean dated 15 July 2010 at Exhibit “LM-3”

 61   Transcript of Proceedings at PNS 280-286

 62   Supplementary Statement of Shane Murphy dated 22 July 2010 at PN 2(j)

 63   Statement of Shane Murphy dated 15 June 2010 at PNS 49 and 55

 64   Statement of Shane Murphy dated 15 June 2010 at PNS 55-56

 65   Statement of Shane Murphy dated 15 June 2010 at PN 49; Transcript of Proceedings at PNS 609-610

 66   Statement of Shane Murphy dated 15 June 2010 at PNS 48-54

 67   Statement of Shane Murphy dated 15 June 2010 at PN 60

 68   Statement of Shane Murphy dated 15 June 2010 at PNS 49, 55,127 and Exhibit “SM-11” at PNS 2-7

 69   Supplementary Statement of Shane Murphy dated 22 July 2010 at PN 2(j)

 70   Statement of Shane Murphy dated 15 June 2010 at PN 68 and Exhibit “SM-11” at PNS 1

 71   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PNS 2, 6-7

 72   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 14

 73   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 15

 74   Statement of Shane Murphy dated 15 June 2010 at PN 64 and Exhibit “SM11” at PNS 18-19

 75   Statement of Shane Murphy dated 15 June 2010 at PN 27

 76   Statement of Arnold Doherty dated 15 July 2010 at PN 15(a)

 77   Statement of Shane Murphy dated 15 June 2010 at PN 77

 78   Statement of Shane Murphy dated 15 June 2010 at PNS 14-15

 79   Statement of Arnold Doherty dated 15 June 2010 at PN 15(d) and Exhibit “AD-3” at PN16, 17 and 18 (the latter reference being in relation to Mr Cooke)

 80   Statement of Arnold Doherty dated 15 June 2010 at Exhibit “AD-3” at PN 20

 81   Statement of Arnold Doherty dated 15 June 2010 at PN 15(g)

 82   Witness Statement of Michelle Horn dated 15 July 2010 at Exhibit “MH-3” at PNS 34-35

 83   Statement of Shane Murphy dated 15 June 2010 at PNS 76-79

 84   Statement of Shane Murphy dated 15 June 2010 at PNS 96, 99 and Exhibit “SM16” at PN 2(g)

 85   Statement of Shane Murphy dated 15 June 2010 at PNS 96, 99-199

 86   Statement of Shane Murphy dated 15 June 2010 at PN 102 and Exhibit “SM16” at PN 3

 87   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM16” at PN 5

 88   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM16” at PN 6 and Exhibit “SM17”

 89   Applicant denied the Witness Statement of Shane Murphy dated 15 June 2010 PN 116 -120 and also see Exhibit “SM16” at PN 6 and Exhibit “SM17”.

 90   Supplementary Statement of Shane Murphy dated 22 July 2010 at PNS 2(a), 2(k), 3, 4 and 5(a) and (b), 5(c), 5(e)

 91   Statement of Michelle Horn dated 15 July 2010 at PNS 14-15

 92   Statement of Michelle Horn dated 15 July 2010 at PN 25

 93   Statement of Ricky Cooke dated 16 July 2010 at PN 12 and Exhibit “RC-2” at PNS 17-18

 94   Statement of William Hansen dated 14 July 2010 at PN 11(a) and Exhibit “WH-1” at PN 9

 95   Supplementary Statement of Shane Murphy dated 22 July 2010 at PN 7; Statement of Ricky Cooke dated 16 July 2010 at Exhibit “RC-2” at PNS 17-20

 96   Supplementary Statement of Bernard Stephen Misztal dated 22 July 2010 at PN 4; Supplementary Statement of Gary James Green dated 22 July 2010 at PN 4

 97   Statement of Michelle Horn dated 15 July 2010 at PN 25

 98   Statement of Michelle Horn dated 15 July 2010 at PNS 20-22

 99   Supplementary Statement of Bernard Stephen Misztal dated 22 July 2010 at PN 2; Statement of Bernard Stephen Misztal dated 11 June 2010 at Exhibit “BSM-1”

 100   Supplementary Statement of Bernard Stephen Misztal dated 22 July 2010 at PNS 5 and 6

 101   Supplementary Statement of Bernard Stephen Misztal dated 22 July 2010 at PN 6; Statement of Michelle Horn dated 15 July 2010 at PN 27

 102   Supplementary Statement of Bernard Stephen Misztal dated 22 July 2010 at PN 2

 103   Statement of Keith Bristow dated 23 July 2010 at PN 3 and Exhibit “KB1” at PNS 6-8

 104   Statement of Michelle Horn dated 15 July 2010 at Exhibit “MH-3” at PNS 13-21

 105   Statement of Michelle Horn dated 15 July 2010 at Exhibit “MH-3” at PN 22

 106   Statement of Laurell McLean dated 15 July 2010 at Exhibit “ LM-2”

 107   Transcript of Proceedings at PN 363

 108   Transcript of Proceedings at PN 343

 109   Transcript of Proceedings at PNS 282-286

 110   Statement of Laurell McLean dated 15 July 2010 at Exhibit “LM-2”; Transcript of Proceedings at PNS 278-282 and 357

 111   Transcript of Proceedings at PNS 365-366

 112   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 7

 113   Transcript of Proceedings at PNS 605-606

 114   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11”

 115   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 6

 116   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” PNS 2-4; Transcript at PN 556

 117   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-9” (see section 5 “Record of employee’s responses”)

 118   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-9”

 119   Statement of Shane Murphy dated 15 June 2010 at PN 68

 120   Transcript of Proceedings at PNS 532-535

 121   Transcript of Proceedings at PN 564

 122   Transcript of Proceedings at PN 391

 123   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PNS 2 and 7

 124   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PNS 3- 4

 125   Transcript of Proceedings at PNS 438-444

 126   Transcript of Proceedings at PN 530

 127   Transcript of Proceedings at PNS 444, 447 and 531

 128   Transcript of Proceedings at PN 686

 129   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 2

 130   Transcript of Proceedings at PN 680

 131   Transcript of Proceedings at PNS 689 and 698-698

 132   Transcript of Proceedings at PN 701

 133   Transcript of Proceedings at PN 307

 134   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 15

 135   Transcript of Proceedings at PNS 646-648 and 656

 136   Transcript of Proceedings at PN 561 (for example only)

 137   Transcript of Proceedings at PN 656

 138   Transcript of Proceedings at PNS 705 and 706

 139   Transcript of Proceedings at PN 1052

 140   Transcript of Proceedings at PNS 1053-1055

 141   Transcript of Proceedings at PNS 1053-1059

 142   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 7

 143   Transcript of Proceedings at PNS 657-660

 144   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 6

 145   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 7

 146   Transcript of Proceedings at PN 638

 147   Transcript of Proceedings at PN 1044-1046

 148   Transcript of Proceedings at PN 609

 149   Statement of Shane Murphy dated 15 June 2010 at PN 49

 150   Transcript of Proceedings at PN 347

 151   Transcript of Proceedings at PN 1052

 152   I say “appears” as the Applicant's evidence is uncertain as to whether on the third occasion he was refusing any further purchases of rum whatsoever as opposed to not being willing to purchase any more rum on the Respondent's premises. There is discussion of this matter elsewhere in this decision.

 153   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PN 12; Transcript of Proceedings at PN 611

 154   Transcript of Proceedings at PN 611

 155   Transcript of Proceedings at PNS 1312-1320

 156   Transcript of Proceedings at PNS 2833-2834

 157   Statement of Shane Murphy dated 15 June 2010 at PN 26

 158   Statement of Margaretta Verkerk dated 15 July 2009 at PNS 7-10

 159   Statement of Margaretta Verkerk dated 15 July 2009 at PNS 11-12

 160   Statement of Shane Murphy dated 15 June 2010 at Exhibit “SM-11” at PNS 2-3, 6 and 14

 161   Statement of Michelle Horn dated 15 July 2010 at PN 25

 162   Statement of Ricky Cooke dated 16 July 2010 at PN 12

 163   Statement of William Hansen dated 14 July 2010 at PN 11(b) and 11(c)

 164   Statement of Donald Wilson dated 15 July 2010 at PN 32. Any evidence to the contrary was scant indeed. Transcript of Proceedings at PN 1334

 165   Transcript of Proceedings at PN 1333

 166   Transcript of Proceedings at PNS 1581-1584

 167   Statement of Laurell McLean dated 15 July 2010 at Exhibits “LM14”, “LM15”, “LM16” and “LM17” at page 39

 168   Statement of Shane Murphy dated 15 June 2010 at Exhibits “SM-23” and “SM-24”

 169   Transcript of Proceedings at PNS 1036, 3717-3718

 170   Statement of Shane Murphy dated 15 June 2010 at PN 155 and Exhibit “SM-25”

 171   Statement of Shane Murphy dated 15 June 2010 at PNS 159-163

 172   Transcript of Proceedings at PNS 32-34

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