Mr Trevor Godfrey v Coal and Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining

[2015] FWC 4193

[2015] FWC 4193

The attached document replaces the document previously issued with the above code on 22 June 2015.

This document has been altered to correct citation errors at Endnote #130 and #157.

Dale Ramsey

Associate to Commissioner Stanton

Dated 23 June 2015

[Note: An appeal pursuant to s.604 (C2015/4744) was lodged against this decision - refer to Full Bench decision dated 15 September 2015 [[2015] FWCFB 5286] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mr Trevor Godfrey
v
Coal and Allied Mining Services Pty Limited T/A Mount Thorley Operations/Warkworth Mining
(U2013/3482)

COMMISSIONER STANTON NEWCASTLE, 22 JUNE 2015

Application for relief from unfair dismissal - arbitration.

[1] This matter concerns an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Mr Trevor Godfrey (the applicant) following his dismissal by Coal and Allied Mining Services Pty Limited trading as Mount Thorley Operations/Warkworth Mining (the respondent).

[2] Mr K Endacott appeared for the Construction, Forestry, Mining and Energy Union (the Union). Mr A Dearden sought permission to appear for the respondent. Leave pursuant to the grounds under s.596(2)(a) of the Act was granted taking into consideration legal representation would enable the matter to be dealt with more effectively, taking into account its complexity.

[3] The applicant commenced employment with the respondent on 31 August 2011 as a production operator. The applicant was dismissed on 16 October 2013 following an investigation into allegations that on 29 September 2013:

• he intentionally drove over a windrow which visibly contained rocks. The respondent considered the applicant’s conduct was unsafe and breached its policies and procedures; and



• when discussing the windrow incident with his supervisor, the applicant engaged in inappropriate conduct whereby he spoke loudly, confrontationally and without respect and said to the supervisor, “ah fuck you.”



• applicant denied the allegations.

Evidence

[4] I have given consideration to the nature of the evidence set out in the various witness statements. I have also given consideration to the video GPS data and the extensive photographic evidence filed in this matter and the vigorous cross-examination that followed. I do not propose to summarise that evidence line by line.

Applicant

[5] The applicant sough reinstatement. It was the applicant’s evidence that on 29 September 2013 he was driving a Komatsu 830E DC dump truck. 1 He described the physical size of the dump truck and noted the operator sits to the left of the cabin and has a limited view to the right hand side of the vehicle. The operator also sits approximately 4.5 metres off the ground.2

[6] The applicant stated that at the time of the incident, he thought he was taking the same route as taken by all dump truck operators that day. At a particular intersection he drove over a grader rill which he estimated was nine inches high. The applicant did not see any rocks in the rill and when compared to the size of the dump truck tyres, the size of the rill was, in his view, insignificant. 3

[7] It was the applicant’s evidence that he could not remember being told a dump truck could not drive over a grader rill.

[8] About 15 seconds after the incident, the supervisor, Mr Rod Griffis called the applicant on the two-way radio and directed him to the crib hut. Mr Griffis had been driving a light vehicle and was travelling behind the applicant when the incident occurred. In response to a question raised by Mr Griffis, the applicant told him that he had no idea why he had been called to the crib hut. Mr Griffis in reply told him that he had driven over the grader rill and he had taken photos of rocks in the rill. Mr Griffis subsequently emailed the photos to his office where the applicant was shown them. The applicant told Mr Griffis that he did not see any rocks. However, Mr Griffis identified two rocks in the photo that the applicant should have avoided. 4

[9] The applicant was adamant that he did not drive over any rocks and the respondent’s photographs of his vehicle’s tyre marks do not show he drove over the rocks as alleged. He considered Mr Griffis’ photographs had been fabricated.

[10] Mr Griffis told the applicant that he was going to be issued with a written warning. In response, the applicant challenged Mr Griffis and stated, “a written warning for this would not stand up.” 5 The applicant later sought the assistance of his Union delegate, Mr Warren Daniel.

[11] The applicant stated he was scheduled to meet with Mr Griffis and another supervisor, Mr Tim Oliphant on 7 October 2013 to discuss a Performance Management Plan put in place concerning alleged “inappropriate sick leave.” 6 However, Mr Oliphant and Mr Griffis informed him the performance management meeting had been cancelled and in lieu, a “show cause” meeting would be convened the following day, 8 October 2013, to consider the recent breach of the respondent’s policies and procedures.

[12] The applicant met with Ms Angela Clive, Human Resources Manager, Mr Oliphant, Mr Daniel and Mr Wayne Borham, Site Union Lodge Delegate on 8 October 2013. He was given a show cause letter during the meeting:

Show Cause Meeting - Breach of Breach of Policy / Procedure & Unsafe Behaviour

I refer to the recent event whereby you intentionally drove haul truck 741 over a windrow that had visible rocks in it.

An investigation was undertaken and it was determined that on the 29 September 2013 you were operating haul truck 741 with a full load when you crossed a windrow that had visible rocks in it and you drove over these rocks.

Your supervisor, Rod Griffis witnessed the event, whereby he asked you to have a discussion with him and provide a statement to which you agreed. During this conversation you confirmed that driving over windrow and rocks was wrong but that it would be your word against your supervisor. Also during this conversation you spoke inappropriately to your supervisor including telling him... “ah, fuck you”. This type of language and behaviour is inappropriate and a breach of the Rio Tinto Way We Work and RTCA Code of Conduct.

The Company has previously raised its concerns with you about failing to comply with Company policy and procedures and your unsafe behaviour. Your safety and the safety of your workmates is of paramount importance.

On 24 November 2012 your supervisor spoke to you about your unsafe behaviour for not wearing the correct PPE (your hard hat) whilst walking up and down an access ladder. This is a breach of Company policy and procedure and you were reminded of your obligation to follow safe work practices.

On 21 December 2012 you were issued with a Final Written Warning for Breach of Policy / Procedure & Unsafe Behaviour for engaging in unsafe behaviour whilst driving a light vehicle that had other employees in it. You were reminded of your obligation to follow safe work practices and adhere to the Coal and Allied standards, procedures, policies and rules that are in place and that vary from time to time.

[13] The applicant attended a further meeting on 10 October 2013 to show cause why he should not be dismissed. He was assisted by Mr Daniel and Mr Mick Robbins, also a Site Union Lodge Delegate. During the meeting, the applicant explained that he had driven over the grader rill and followed the same path as other dump truck operators. He did not see any rocks. He denied saying “ah, fuck you” to Mr Griffis.

[14] The applicant alleged Mr Griffis had bullied and harassed him on a number of occasions prior to the incident. For example, the applicant alleged Mr Griffis would ignore his calls on the two-way radio. Mr Griffis also put him in the respondent’s oldest vehicles. In that regard, the applicant contended Mr Griffis placed employees that he did not like in the older vehicles. 7

[15] The applicant was informed of the decision to terminate his employment during a meeting on 16 October 2013 for the reasons set out in the show cause letter dated 8 October 2013.

[16] In cross-examination, the applicant confirmed that a grader rill is also known as a windrow. 8 He agreed that the respondent had initiated a program promoting tyre performance at toolbox and muster room meetings. That program was known as “Improving MTW tyre life”.9 The applicant acknowledged that the respondent’s message to dump truck operators was that “any rock larger than your fist will cause damage” to tyres.10 He also thought the cost of a tyre was in the vicinity of $45,000 to $50,000.11

[17] The applicant acknowledged and understood that generally, windrows are not crossed without prior permission of the supervisor. He further agreed that a common message of the respondent’s presentations concerning tyre maintenance was that dump truck operators should avoid crossing a windrow. 12

[18] It was the applicant evidence that he had driven over the grader rill many times and it was common practice amongst dump truck drivers to do so. 13 However, if you ask permission from the supervisor to cross the windrow, they will say that permission is granted to cross provided there is no damage to the tyres.14 He acknowledged the respondent’s policy was not to drive over windrows except in exceptional circumstances.15

[19] It was the applicant’s evidence that supervisors do not say “Call me every time.” They say, “If it looks clear, you can cross your grader rill.” 16 However, he had driven over the grader rill many times without contacting the supervisor.17

[20] The applicant denied that other operators had received disciplinary action “for crossing grader rills and rocks and the like.” 18

[21] The applicant did not seek the permission of his supervisor to cross the windrow and contended it was permissible to cross if there was no large material or visible rocks present 19 in exceptional circumstances.20 The applicant agreed that he relied on previous occasions when he crossed the windrow that there was no offensive material within it, to justify crossing the windrow in the circumstances that led to his dismissal.21

[22] The applicant suggested there was management pressure on dump truck operators to maximise production and not delay loads due to “a bit of dirt across the grader (rill)”. 22

[23] The applicant agreed that it was difficult to identify and avoid rocks within the grader windrow. The following exchange ensued: 23

You say in paragraph 29, “If I thought there were large rocks, I would’ve avoided them”?---Exactly right.

When you say “avoided them”, does that mean that you would’ve just turned to a different part of the rill in order to cross?---If it had meant that I had to drive up the road to cross the grader rill, yes.

[24] The applicant agreed that during the course of various disciplinary meetings, the position of the respondent was that dump truck operators “were not permitted to cross the windrow under any circumstances unless, of course, you had contacted your supervisor and they had given you approval to cross the windrow or rill.” 24

[25] The applicant was shown photographs 25 depicting a set of tyre tracks that travel through the windrow26 and acknowledged the photographs showed his tyre track in relation to the rocks within the windrow.27 He further acknowledged that in the event of tyre failure, there is an explosion as the air pressure drops and the tyre can be severely damaged.28 The applicant acknowledged there were a number of rocks near his tyre treads as shown in the photograph ranging from 15 centimetres to the size of a basketball.29

[26] The applicant agreed that a tyre failure has the capacity to injure other employees. 30

[27] In relation to the swearing incident, the applicant denied the incident as alleged occurred and considered Mr Justin Garrett’s evidence that he heard him tell Mr Griffis, “Ah, fuck you” was false. 31

[28] The applicant agreed that Mr Daniel had not raised any complaints concerning alleged bullying and harassment with the respondent on his behalf.

Warren Daniel

[29] Mr Daniel is an operator employed by the respondent and was the grader operator on the day of the incident. His evidence was that he did not observe any large rocks on the road at the time of the incident and at that time, he thought between 20 and 30 dump trucks had driven over the grader rill. 32

[30] In cross-examination, Mr Daniel stated he had not read the applicant’s statements nor the reply evidence filed in this matter. 33

[31] Mr Daniel agreed that there is a common message from the respondent that promotes safety amongst operators. 34 He further acknowledged that the price of a dump truck tyre could be in the order of $30,00035 and the respondent had conducted a number of tyre safety presentations.36

[32] It was Mr Daniel’s evidence that a common theme of toolbox meetings was that “the major contributing factor to our current poor tyre performance is rock penetration damage.” 37

[33] Mr Daniel agreed that he had read Mr Griffis statement and confirmed Mr Griffis was travelling behind the applicant in a light vehicle at the time of the incident. 38

[34] Mr Daniel acknowledged the applicant had received a written warning for a speeding offence in December 2012 39 and that warning was subject to a dispute with the respondent.40

[35] Mr Daniel confirmed that during the course of the disciplinary hearing, the applicant denied stating, “Ah, fuck you” to Mr Griffis. 41

[36] Mr Daniel was taken to paragraph 36 of a statement made by a former employee of the respondent, Mr Dennis Sipple tendered in separate s.394 unfair dismissal proceedings 42 which stated:

The OCE came and picked me up and took me to Ms Tough. Ms Tough asked me why I graded the area that I did as there were no haul trucks running there. I replied, “I didn’t want to leave any windrows there for the haul trucks to run over while I had by break.”

[37] In response, Mr Daniel agreed the statement by Mr Sipple was consistent with the operator’s understanding that the respondent does not want windrows driven over. 43

[38] Mr Daniel was also shown a photograph of a dump truck that had driven over a windrow containing rocks and a tyre had exploded. The tyre explosion caused abrasion to a fitter’s neck. Rock and debris also hit employees and equipment. A water tank was also dented by shrapnel. Mr Daniel said he was aware of the photograph which formed part of a safety program and understood safety is a major reason why operators should not drive over a windrow. 44

Respondent

Angela Clive

[39] Ms Clive is the respondent’s Manager, Human Resources.

[40] Ms Clive’s evidence dealt with the show cause meeting convened on 8 October 2013, the applicant’s allegations concerning bullying and harassment, the respondent’s consideration of the applicant’s show cause response, the dismissal meeting on 16 October 2014 and the applicant’s statement filed in these proceedings. Various notes taken by Ms Clive concerning the respondent’s consideration of the applicant’s conduct were annexed to her statement.

[41] It was Ms Clive’s evidence that during the course of the meeting on 8 October 2013, the applicant said words to the effect: 45

I was pulled up to the crib hut by Rod because Rod said he had seen me drive over rocks but I don’t think I did”, “I have seen the photos Rod took”, “I know we’re not meant to drive over rocks”, “There’s no truck in the photo, it’s just photo of tracks.”

[42] Ms Clive stated that during the course of a meeting with the applicant, Mr Oliphant, Mr Daniel and Mr Robbins, the applicant contended: 46

• he did not think that he had driven over the windrow on purpose;



• he did not have an altercation with Mr Griffis concerning the incident;



• he did not say the words, “Ah, fuck you” to Mr Griffis; and



• he had been harassed or bullied by Mr Griffis on a number of occasions.

[43] Ms Clive observed that during the meeting, the applicant appeared nervous at times when responding to questions raised. He was quite indignant about the allegation concerning his alleged altercation with Mr Griffis and claimed he had been singled out by him. Ms Clive contended that during the meeting, the applicant showed “arrogance or cockiness in his demeanour.” 47

[44] The respondent decided to investigate the applicant’s bullying and harassment claims concerning Mr Griffis. Ms Clive and Mr Oliphant put the allegations to Mr Griffis during a meeting convened that afternoon. Mr Griffis confirmed the applicant had spoken to him in an unacceptable manner, including saying words to the following effect: 48

“who the fuck cares, it’s your word against mine”, “ah, fuck you”, “I’ll see you in court”, “you can’t prove anything against me. It’s you word against mine. It could be any truck, I’ll fucking do everything, I’ll take you to fucking court, you’re harassing me you can’t prove how big those rocks are.”

[45] Mr Griffis subsequently confirmed that another supervisor, Mr Garrett, who used the office next door to him, might be able to provide further information concerning the altercation because after the applicant left “Mr Garrett had poked his head around the door to see if Mr Griffis was okay.” 49 Mr Garrett confirmed the following morning that he had heard a raised voice and the words “Ah, fuck you” at the time the applicant left Mr Griffis’ office.50

[46] The respondent subsequently investigated the applicant’s complaints and determined the bullying allegations could not be substantiated, although Mr Griffis had conceded he had called the applicant a “smart arse”. The respondent considered the applicant’s claims were opportunistic as no prior complaints had been made by the applicant concerning Mr Griffis’ conduct. The respondent also determined there was no reason for Mr Griffis to fabricate a story that the applicant drove over the windrow. Mr Griffis had photos of the relevant windrow and the applicant had asked Mr Daniel, who had graded the road, to provide a statement concerning the incident. 51

[47] Ms Clive stated the applicant had disregarded the respondent’s policies and procedures on 24 November 2012 when he was found to have driven a light vehicle at 87 kph, 27 kph beyond the site speed limit and at that time ignored a request from passengers to slow down. The applicant contended he was driving at 70 kph. However, he denied any of his passengers had asked him to slow down. He was issued with a final written warning with the caveat that future unacceptable behaviour will result in further disciplinary action, which may include termination of employment. 52

[48] It was Ms Clive’s evidence that the applicant had been trained in the Rio Tinto Code of Conduct and the Way We Work Policies. The applicant had breached those policies and the appropriate disciplinary response was dismissal.

[49] In cross-examination, Ms Clive stated she had not seen an email from Mr Griffis to Mr Oliphant in which he directed Mr Oliphant to “look at the photos” and “what level can we go to... (Dismissal???)” 53 She also agreed there was no mention of the “Ah, fuck you” comment in Mr Griffis’ email.54 She was aware the applicant denied making the statement.

[50] Ms Clive stated she had not examined the GPS mapping information put in evidence by the respondent nor was she aware the applicant considered the incident had occurred in a location different to the GPS location. 55

[51] Ms Clive agreed that the allegations including the “Ah, fuck you” comment should be been formally investigated and determined prior to being put to the applicant as part of the show cause meeting conducted on 8 October 2013. 56 Moreover, Mr Griffis was not asked why he did not refer to the “Ah, fuck you” comments in his email to Mr Oliphant dated 29 September 2013.

[52] Ms Clive agreed the respondent was treating the grader rill and swearing incidents as two separate incidents concerning the safety and performance and inappropriate behaviour of the applicant. 57

[53] In relation to the applicant’s complaint that Mr Griffis did not always respond to his two-way radio calls, Ms Clive stated the investigation determined there were times when Mr Griffis was unable to respond to the call. 58 There was no pattern established.

[54] In relation to the applicant’s complaints about vehicle allocation, Ms Clive stated the respondent had 84 dump trucks and only four dozers and four graders. 59

[55] In re-examination, Ms Clive replied to the applicant’s inference that the respondent had not conducted a proper investigation prior to the show cause meeting on 8 October 2013 by stating she had no concerns that the investigation that followed that meeting did not reach the appropriate conclusion or speak to the “appropriate people that the applicant wanted to be spoken to.” 60

[56] In relation to the various photographs and diagrams put to the applicant concerning the windrow incident, the applicant did not suggest during his discussions with the respondent that the vehicles identified and their positions on the map were incorrect. 61

[57] Ms Clive contended the applicant had been given ample opportunity to defend the allegations with the appropriate support. Neither the Union nor anyone else had informed the respondent that it had followed an incorrect or incomplete procedure in determining that the evidence of Mr Griffis should be preferred over the evidence of the applicant. 62

[58] In relation to the bullying and harassment claims, Ms Clive considered that if the applicant had reported his concerns to the delegates by way of a complaint, it would have been raised earlier with the respondent “at the appropriate level”. 63

John Griffis

[59] Mr Griffis was the applicant’s supervisor and is responsible for the allocation of work to the haul crew. As part of his duties he conducts pit inspections and attends production and safety meetings. He also undertakes safety and production inspections. 64

[60] At the commencement of each shift, Mr Griffis conducts a routine pit inspection. On 29 September 2013, while conducting a pit inspection, Mr Griffis followed Truck 741 out of the pit. As the truck approached an intersection, it turned right towards the flyover and subsequently drove over a grader rill. At that juncture, he was not aware of the driver’s identity. 65 Mr Griffis contacted the driver by radio and asked him to park at the crib huts. He then informed the grader driver, Mr Daniel “that he would be in his way on the road for a while.” He said to Mr Daniel, words to the effect:

The last truck has run over some rocks and I’m just taking a couple of quick photos and I’ll be out of your way.  66

[61] Copies of the relevant photographs were attached to Mr Griffis’ Witness Statement and marked ‘RJG-1’. He described the size of the rocks as being 400-550 millimetres wide. 67

[62] Upon Mr Griffis’ arrival at the crib hut location, the applicant was waiting for him as the driver of Truck 741.

[63] At paragraph 13-19 of his statement, Mr Griffis described his meeting with the applicant concerning the incident:

13. I approached the applicant and we had a conversation to the following effect:

RJG Have you got any idea why I called you up.

Aplcnt No. I don’t.

RJG Well I was following you and you drove over the grader rill and there was quite some lard rocks in there.

Aplcnt There were no rocks in there. That’s bullshit. I was driving where everyone else had been driving.

RJG Mate, the rocks were quite large.

Aplcnt There were no rocks in there.

RJG Well, I’ve got the photos.

Aplcnt I don’t believe you.

RJG If you don’t believe me, I’d be quite happy to take you down the front and show you the photos.

Aplcnt Ok.

14. The applicant and I got in my car and drove to my office. While we were driving to the office the applicant said words to the effect:

I’m not taking responsibility for this ...I’m going to deny that I ran over any rocks if there are any rocks there.

15. When we got into the office, I plugged the camera in and showed him the photos. We had a conversation to the following effect:

Aplcnt It’s a load of bullshit. That could be a photo from anywhere, I’ll fucking deny everything you say.

RJG You can see the size of the rocks in the photos, and if you can see the footprint of the tyre, you can get a rough idea of how big a rock is in relation to the ratio of the footprint of the tyre.

16. At this point, the applicant started getting aggressive. I was sitting down at my desk and he was standing behind me looking over my shoulder at the pictures. The applicant started raising his voice and said words to the effect of:

Who the fuck cares, it’s your words against mine; you can get fucked; fuck you, I’ll see you in court; you can’t prove anything against me. It’s your word against mine. It could be any truck, I’ll fucking deny everything. I’ll take you to fucking court, you’re harassing me you can’t prove how big those rocks are.

17. I responded with words to the effect of:

Calm down. Why don’t you head down to the smokers shed.

18. The applicant then threw the office door open pretty hard and walked off.

19. About an hour or an hour and a half later, the applicant returned to the office and said words to the following effect:

I want to apologise for the way I carried on and my attitude.

[64] Shortly after the applicant left his office, Mr Griffis: 68

• reported the incident to Mr Oliphant;



• sent Mr Oliphant a copy of the photos taken that showed a truck had driven over the grader rill; and



• completed an Initial Incident Observation Form (Incident Form) and attached a diagram of the road intersection in relation to the incident showing where Truck 741 had crossed the grader rill.

[65] Late on 7 October 2013, Mr Griffis spoke to Mr Oliphant concerning the incident. In response, Mr Oliphant told him that in view of the nature of the incident and the safety breaches, the scheduled performance management meeting with the applicant on 8 October 2013 would be called off and in lieu, there would be a show cause meeting scheduled. 69

[66] Mr Griffis, Mr Oliphant, Mr Daniel and the applicant subsequently met in Mr Oliphant’s office. At paragraphs 24-28 of his statement, Mr Griffis set out the meeting conversations to the following effect:

24. TJO Trevor, due to what happened on 29 September 2013 we’re not going ahead today. We are going to reschedule and there is going to be a show cause tomorrow in which we’ll explain the allegations against you and then the next day, you’ll have an opportunity to respond to those allegations. This matter is serious and could result in the termination of your employment.

Aplcnt The day after is my rostered day off and I am meant to be on call as a firefighter.

25. After the meeting, I said to the applicant words to the effect:

Why don’t you go to the smoker’s shed and have a coffee and just relax and try and calm down and I’ll come and catch up with you shortly.

26. The applicant did go and have a coffee. I did go back out to see how he was feeling. He appeared to me to (be) still visibly upset and on edge. I said words to him to the effect:

Just chill out for a little bit longer.

27. I think the applicant may have been in the smoker’s shed for another hour to an hour and a half before I went back and spoke to him again to see how he was going. The applicant said words to the effect:

I’m feeling sick and I want to go because I’ve got in to see my doctor.

28. I agreed and he left to go and see his doctor. The applicant may have remained at work for around two and a half to three hours after the meeting.

[67] Mr Griffis noted it was common practice not to allow a person to operate machinery when there was a concern that they may not be able to focus on their job, whether it’s because they’ve been told to show cause, they’ve had a bad night’s sleep or have got personal issues. 70

[68] Mr Griffis recalled that on 25 November 2012, two employees, passengers in a vehicle driven by the applicant, expressed concern to him that the applicant had been driving dangerously at speed. All three passengers were given an Incident Form in relation to the incident. Two passengers stated they had asked the applicant to slow down. 71 When the concerns of the two passengers were put to the applicant, he responded with words to the effect, “who gives a fuck ...?”

[69] The Incident Forms were sent to Mr Oliphant on the day of the incident. Mr Griffis sought the respondent’s GPS vehicle tracking data - which indicated the applicant’s vehicle had reached a top speed of 92 kph. Mr Griffis attempted to discuss the matter with the applicant at the end of the shift. However, the applicant refused to meet with him. 72

[70] In response to the applicant’s complaints that he had made a number of requests to drive other vehicles, Mr Griffis stated he looked after a team of 90 employees. In a perfect world, operators should be ‘passed out’ on all levels of equipment. However, that is not possible due to the operational requirements of the business - it comes down to time, availability and training. 73

[71] Mr Griffis dismissed the applicant’s contention that the height of the grader rill compared to the size of the truck tyres was irrelevant. The respondent’s consistent policy, “rolled out over several toolbox and safety talks” was that no one should drive over any grader rill or windrow. Any rock “bigger than a fist is classified as damaging to the tyres of dump trucks.” 74

[72] Tyre damage is both a safety and cost issue. Tyre failure can result in injury to operators and bystanders. It was also common knowledge that you do not driver over a grader rill because it is impossible to determine what is underneath. 75 There was no evidence that other trucks operating in the area at the time the applicant drove over the grader rill also drove over the grader rill or windrow.76

[73] Mr Griffis denied the applicant’s contention that the purpose of a performance management meeting “was to have a shot” at employees. 77 He further maintained the applicant had made the “Ah, fuck you” statement.78 Mr Griffis also contended that the applicant had an “us versus them” mentality79 and would often respond abusively when being spoken to about his conduct.80

[74] In response to being informed that the applicant could not recall being told he was not allowed to drive over a grader rill, Mr Griffis stated it was common knowledge amongst operators that “we don’t drive over grader rills or rocks.” 81 An operator in the applicant’s position should have called the supervisor or sought advice from the grader operator.82

[75] Mr Griffis confirmed that on the day of the incident he was travelling about 50 metres behind the applicant’s vehicle.

[76] Mr Griffis stated he did not include the “Ah, fuck you” comment in the Incident Form because the form only concerned the grader rill incident. He subsequently reported the comment to Mr Oliphant when he spoke to him. 83

[77] Mr Griffis subsequently marked a set of photographs setting out tyre track marks, the location and size of any offending rocks in or near the grader rill. 84 He estimated the size of the smallest rock was 20 centimetres and the largest 40 centimetres.85 There were also a number of rocks approximately 30 centimetres in size.

[78] Mr Griffis stated he was “dumbfounded” when he saw the applicant drive across a windrow, “ Because every day, it’s a part of our start-up procedure that we explain our focus on tyre safety and tyres in general, and one of the major factors in that is running over grader windrows and rocks that damage tyres.” 86

[79] Mr Griffis disagreed the applicant had suffered from bullying and harassment initiated by himself. 87

[80] In cross-examination, Mr Griffis confirmed:

• he spoke to Mr Oliphant and the Mr Morgan Costello, the Mine Manager, about the “Ah, fuck you” statement but did not lodge a formal complaint concerning the applicant’s swearing; 88



• he had used the word “excitement” in his email to Mr Oliphant because he was dumbfounded that someone could be so stupid and blatantly drive over a windrow with potentially large rocks within it contrary to daily start-up procedures; 89



• the reference to (dismissal?) in his email to Mr Oliphant was a question as to whether the incident potentially required a higher level of discipline than he was able to execute. 90

[81] Mr Griffis denied that in this email to Mr Oliphant he was inquiring whether there was enough evidence to sack the applicant. 91

[82] Despite pressure to accept that the GPS data supports in part the applicant’s case that at the time of the incident, the grader was at the T-intersection, Mr Griffis stated he drew a diagram consistent with his vehicle following the applicant’s dump truck and had watched the applicant “proceed across the windrow”. 92 In fact, the applicant’s vehicle “proceeded out behind the grader and crossed the grader windrow and over the rocks and that’s how the tyre marks... (can be seen) in the windrow and over the rocks”.93

[83] It was Mr Griffis’ evidence that despite some issues raised by the applicant concerning the integrity of the GPS data, “I... witnessed the truck driving over the windrow and... the tyre marks (appeared) in the windrow because the grader had passed... to the left and the truck proceeded out behind it and crossed that windrow.” 94

Justin Garrett

[84] Mr Garrett’s written evidence essentially comprised a response to the applicant’s version of events concerning the incident on 29 September 2013. 95 He is a supervisor. Shortly stated, Mr Garrett recalled he had completed some site inspections and was in his office at between approximately 9:30 and 10:30am. His office was next to Mr Griffis. He observed at the time Mr Griffis was in his office with an unknown person.

[85] Mr Garrett stated his door was closed - however he could hear murmuring from Mr Griffis’ office - it got louder until he heard words to the effect, “fuck you” said in a loud voice before he heard a door slam. It was not Mr Griffis’ voice. He then got up to see what was happening. Mr Griffis was standing by his door and the applicant, who he knew, was walking away. Approximately one week later, he was called to a meeting with Ms Clive and Mr Oliphant and was asked to describe what he had heard on 29 September 2013.

[86] Mr Garrett stated that contrary to the applicant’s contention that he could not recall being told not to drive over a grader rill, it was his experience that there was a toolbox talk/discussion prior to each shift and the requirement not to drive over rocks, keep an eye out for offending material so as to prevent tyre damage, has been at the forefront of toolbox discussions “for as long as I have worked for the company.” 96

[87] Mr Garrett stated the prevention of tyre damage is an important safety concern. Due to tyre pressure, damage caused by a rock could cause the tyre to burst sending shrapnel and debris, including the locking rings of the rims, into the immediate area, “like a bomb going off.” 97 Tyre cuts can also cause tyres to burst. A person standing in the vicinity of a tyre burst could be seriously injured or killed.98

[88] In response to the applicant’s evidence that it was common for operators to drive over a windrow without seeking the permission of a supervisor, Mr Garrett stated he received calls on the two-way radio and he had heard grader operators under his supervision receive calls and inform operators “what’s in the windrow, that it’s safe to cross.” 99 Grader operators normally advise operators where they propose to grade and if there is large material in the windrow, the toolbox instruction is to call up the operators and let them know.100 He disagreed there was production pressure that allowed operators to cross the windrow without permission.101

[89] In cross-examination, Mr Garrett confirmed that an operator would normally talk to the grader operator if he or she was required to cross the grader rill while travelling on the wrong side of the road to avoid the grader and then having to cross the rill to return to the correct side of the road. 102 He agreed it was common practice that if there was a grader rill in the middle of the road and the operator has to move to the left hand side of the road, he or she will need to cross the grader rill.103 In such circumstances it was appropriate to contact the grader operator or supervisor. If there are rocks in the rill the grader operator will tell the operator not to cross in that particular location. It was not common practice to cross the grader rill without establishing what was contained within it.104

[90] Mr Garrett confirmed he heard the “Ah, fuck you” comment but did not report it because Mr Griffis “was the supervisor there”. 105 He did, however, provide a verbal report to the chief coordinator, Mr Bruce Brighton.106

[91] It was Mr Garrett’s evidence that Mr Griffis had never indicated to him a dislike of the applicant. 107 He was unaware the applicant had denied swearing at Mr Griffis.

[92] In re-examination, Mr Garrett agreed that the meeting notes concerning his meeting with Ms Clive and Mr Oliphant concerning the applicant’s conduct were consistent with his recollection of the meeting. 108

Tim Oliphant

[93] Mr Oliphant is a superintendant with the respondent and manages four haul teams.

[94] Mr Oliphant stated the applicant was placed on a Performance Management Plan (PMP) in June 2013 due to excessive sick leave - 16 shifts over a period of 12 months. He explained a PMP is not a disciplinary process by rather seeks to assist an employee to improve their performance. 109

[95] The applicant was given a final written warning in December 2012 for speeding and disregarding passenger requests to slow down.

[96] Mr Oliphant referred to a Tyre Improvement Program training presentation given to all haul teams in late 2012. Slide 10 of the presentation stated: 110

Crossing grader windrows has high potential to cause tyre damage from the unseen material they may contain, grader windrows are not to be crossed or straddled at any time, permission must be gained from your supervisor for exceptional circumstances.

An attendance list attached to Mr Oliphant’s statement showed the applicant attended the tyre training presentation on 31 December 2012. 111

[97] Mr Oliphant recounted his meetings with the applicant on 7 and 8 October 2013 culminating in handing the applicant a show cause letter. During the meeting on 8 October 2013, the applicant raised a number of issues concerning Mr Griffis’ behaviour with respect to him. Both Mr Oliphant and Ms Clive subsequently agreed those matters should be raised with Mr Griffis later that day.

[98] Mr Oliphant stated Mr Griffis had confirmed the “Ah, fuck you” and the applicant’s statements that nothing could be proven against him in a discussion with Ms Clive and himself. They also spoke to Mr Garrett. 112

[99] Mr Oliphant did not consider the various allegations raised by the applicant against Mr Griffis could be substantiated as bullying or harassment. 113

[100] In relation to the applicant’s statement, Mr Oliphant stated it was incorrect that operators had not been told they could not drive over a grader rill or windrow or had never been told what size of rock constitutes a large rock. Drivers are routinely told not to drive over a rock that is bigger than their fist. 114

[101] Mr Oliphant contended that in the time the applicant had been employed by the respondent, he had shown disregard for safety requirements despite being warned about the seriousness of safety as an issue. 115 Moreover, when spoken to about the safety issues that he has been warned about, the applicant takes no personal responsibility for his actions. Instead, he denies the conduct occurred or says he was not aware of the issues. His attitude to management is combative and he seems to view all interactions with supervisors with an “us” against “them” perspective.116

[102] It was Mr Oliphant’s evidence that the applicant’s contention that operators drive over grader rills regularly during their shift was “entirely inconsistent with our expectations of truck operators.” 117

[103] Given a tyre pressure of 105psi, Mr Oliphant stated a tyre failure could result in various objects being propelled towards people and equipment. 118

[104] Mr Oliphant referred to Exhibit 19, a safety awareness presentation which followed a tyre failure incident in Queensland that injured a fitter, dented a water tank and shattered the driver’s window of a light vehicle. A key message of the presentation was the damage that can follow if a truck drives over rocks contained in the grader windrow or on the road generally.

[105] Mr Oliphant referred to GPS tracking screen shot materials that showed the grader was on the left hand side of the road and the applicant’s truck was on the right.

[106] In cross-examination, Mr Oliphant stated he investigated the issues concerning the applicant’s conduct. 119 Prior to the show cause letter given to the applicant on 8 October 2013, Mr Oliphant had not spoken to the applicant - he had relied on the applicant’s statement.120 He also spoke to Mr Griffis.

[107] During the course of the meeting on 8 October 2013, Mr Oliphant put the allegations concerning the windrow and swearing incidents to the applicant. At that stage, Mr Oliphant considered he had completed his investigation into the windrow incident. 121 The applicant was given an opportunity to respond on 10 October 2013.

[108] Mr Oliphant disagreed with the proposition that there was no proper investigation consistent with the respondent’s procedures. 122 He also disagreed with the applicant’s proposition that the GPS data is consistent with his version of events:

... he approached the intersection, the grader gave way to him and he went around and therefore the grader passed after him. 123

[109] Rather, Mr Oliphant contended the GPS data shows:

... the grader is on the left in the picture, the grader’s on the left, the truck’s on the right so the truck drove behind the grader. 124

Submission

[110] Both the applicant and respondent filed comprehensive oral and written submissions. I have given consideration to those submissions and the authorities relied upon in determining this matter. A summary of the more significant matters raised in those submissions is set out below.

Applicant

[111] The applicant commenced employment with the respondent on 31 August 2011. His dismissal on 16 October 2014 was harsh, unjust and unreasonable. The applicant sought reinstatement to his previous position from the date of dismissal with full continuity of service and compensation for lost earnings.

[112] There was no valid reason for the applicant’s dismissal, there was no proper investigation and procedural fairness was not afforded. The dismissal was harsh on the grounds that the respondent’s conduct had caused a recurrence of depression and placed his marriage under stress. The applicant has been forced to take another position in the coal industry on a fly in, fly out, drive in, drive out basis.

[113] The applicant was principally dismissed for two reasons. On 29 September 2013, he drove a dump truck over a windrow with visible, large rocks in it and he swore at his supervisor during a discussion shortly afterwards. The applicant asserts that he did not drive over the windrow with visible large rocks as alleged and submits that on the balance of probability that he did not do so. Nor did hear swear stating “Ah, fuck you”to his supervisor, Mr Griffis. The Commission should not find, on the balance of probability that this occurred.

[114] However, should the Commission conclude on the balance of probability that he did drive over the windrow in the manner alleged and/or the swearing did occur, the applicant’s conduct did not justify dismissal.

[115] Mr Griffis made no formal complaint about any alleged swearing.

Windrow incident

[116] It is common practice for operators to drive over the windrow/grader rill and it had been occurring throughout the shift. The applicant took the same route that other operators had taken on the day of the incident as confirmed by the GPS data.

[117] The respondent failed to follow the investigation process contained in the “Managing Performance Policy” and as a result the applicant was denied due process and procedural fairness

[118] The GPS data is inconsistent with Mr Griffis’ version of events and clearly supports the applicant’s version as to the interaction that occurred between himself and the grader. What is not in dispute in these proceedings is that if the interaction at the T-intersection occurred in the way the applicant alleges and as Mr Daniel indicates, is consistent with his practice and is also supported strongly by the GPS data, then the windrow/grader rill would have been wiped clean by the grader passing and the photograph’s could not show the tyre tracks of the applicant’s dump truck as alleged.

[119] The applicant further submits that Mr Griffis’ evidence is unreliable and is inconsistent with the GPS data. What occurred at the T-intersction was that the grader gave way to the applicant as it travelled down to the S-bends. Mr Griffis’ hand drawn diagram is therefore clearly inaccurate when viewed against Mr Daniel’s evidence, the applicant’s recollection and the GPS data. Mr Griffis’ evidence that he saw the grader turn before the windrow cannot be substantiated.

[120] The applicant asserts that the location where Mr Griffis states the grader had to stop for him to take the photographs was incorrect. The GPS data clearly shows that the grader did stop at the intersection for the applicant.

[121] The evidence reveals that there was malice towards the applicant by Mr Griffis. The applicant gives evidence about repeated, unreasonable conduct towards him by Mr Griffis and he raised these concerns at the show cause meeting on 10 October 2013.

[122] There was no detailed investigation undertaken prior to the dismissal of the applicant.

[123] Ms Clive’s cross-examination concerning the investigation of the allegations of unreasonable behaviour by Mr Griffis towards the applicant reveals deficiencies in that investigation. There was no serious investigation of those allegations. Ms Clive and Mr Oliphant only spoke with Mr Griffis and Mr Garrett, both supervisors. The respondent did not check with any operators who generally overhear two-way radio calls.

[124] Further evidence showing Mr Griffis’ malice towards the applicant is set out in the email dated 29 September 2013 that accompanied the report to Mr Oliphant. Mr Griffis uses the terms:

“I won’t tell you what it is about I’ll let the excitement of the photos and statements deliver…..Give me a call if you need any info otherwise email what level we can go….(Dismissal) ????”.

[125] The email also purports to be an enquiry about whether or not the applicant can be dismissed.

[126] Mr Griffis’ report makes no reference at all to the “Ah, fuck you”comment relied upon to dismiss the applicant.

[127] The Commission should conclude on the balance of probability that it was not the applicant who drove over the windrow/grader rill and the rocks which appear in the photographs. If the Commission finds against the applicant, or is unable to form a conclusion of whether or not the applicant was at fault for driving over the rocks that appear in the photographs tendered into evidence, the applicant submits that it does not provide a valid reason for his termination. The evidence reveals many employees had driven over the windrow/grader rill all day and the applicant did no more than follow the route of other employees. It is common practice for operators to drive over the windrow/grader rill.

[128] The applicant did not see any large rocks in the windrow/ grader rill that he drove over. Mr Daniel, the grader operator did not see any large rocks. The Commission should accept the evidence of the applicant and Mr Daniel concerning the practice of driving over the windrow/grader rill. Their evidence is somewhat supported by Mr Garrett who in cross examination 125 agreed vehicles cross the grader rill in the same circumstances such as overtaking a grader or when an operator may “take an intersection” and drive up the wrong side of the road and a vehicle comes from the other location. Mr Garrett’s evidence was:126

Okay, but if he wants to go around the grader, he’s got to go over the grader rill?—Yes.

[129] Mr Garrett also stated: 127

Yes, and that means he would pass back over the grader rill onto his side of the road, wouldn’t other way would stop and let him come through, all depending on what’s in the grader rill.

[130] Mr Garrett agreed that if there were no rocks in the grader rill there would be no issue with the applicant:

Is it correct to say that if he crossed the grader rill and if there were no rocks in it, that wouldn’t have been an issue? – No, as long as there’s no tyre damaging material. If it was fines, yes. 128

[131] There is no reason not to accept the evidence of the applicant that he did not see any large rocks in the windrow/ grader rill when he passed over it. If the Commission accepts that the photographs depict the applicant’s vehicle, dismissal was not justified because the applicant did not observe any large rocks as he passed over the grader rill.

[132] The applicant sought to rely on the GPS data which it asserted was inconsistent with Mr Griffis’ version of events. The applicant’s dump truck was T741 and Mr Daniel’s grader was GR850. The relevant interaction between the applicant’s dump truck and the grader occurred at approximately time/date stamp 8:27.47 a.m. T741 approaches the intersection as does GR850, with both vehicles being at the intersection at the same time at 8:28.14 a.m. T741 crosses the T-intersection and moves to the right. The GPS data shows T741 moving at a faster rate up the ramp than GR850 and clearly supports the applicant’s version of events as to how the intersection was transacted at the relevant time and how Mr Daniel states is his usual practice.

[133] The GPS data shows grader GR850 at the intersection at 8:27.57 a.m. Between 8:28.06 a.m. and 8:28.19 a.m. GR850 is still at the intersection with T741. At 8:28.25 a.m. GR850 remains at the intersection while T741 has proceeded past GR850 and commenced driving up the incline. At 8:28.34 a.m., GR850 has moved through the intersection continuing down the S-bends and T741 has travelled a far greater distance up the incline. At 8:28.46 a.m., T741 has travelled even further up the incline compared to the movements of GR850 from the intersection.

[134] The applicant submits the GPS data is clearly supportive of the applicant’s version as to the interaction that occurred between himself and the grader. What is not in dispute in these proceedings is that if the interaction at the T-intersection occurred in the way the applicant alleges and supported by Mr Daniel, the windrow/grader rill would have been wiped clean by the grader passing and the photograph’s could not be of the applicant’s dump truck, as alleged. The applicant acknowledged the light vehicle that Mr Griffis was driving was not GPS tracked.

[135] Relevantly at time/ date stamp 7:58.27 a.m., dump truck T741 would have had to have crossed the grader rill and in fact, can be seen slightly to the left hand side of the Grader while following it up the flyover road. T741 overtakes the grader on the left hand side. The applicant contends this clearly establishes T741 had to cross the grader rill while taking the intersection. A similar pattern of vehicle movements can be seen in the GPS data which shows the grader movements and the relevant dump truck movements. The applicant considers the GPS data reveals that it is highly likely the windrow/grader rill was crossed in accordance with the evidence of the applicant and Mr Daniel on numerous occasions.

Inappropriate language allegation

[136] The applicant denies the allegation that he swore at Mr Griffis and on the balance of probability that should be accepted by the Commission and did not provide the basis for a valid reason for dismissal. In the alternative, if the Commission accepts that he swore during discussions with Mr Griffis, he should not have been dismissed as Mr Griffis did not make a complaint. Mr Griffis did state that he mentioned the swearing incident to Mr Oliphant.

[137] The applicant contended Mr Griffis’ email to Mr Oliphant dated 29 September 2013 inferred that Mr Griffis had the view that Mr Oliphant was looking for a reason to dismiss the applicant and would be excited about the same. On 8 October 2013, the applicant received a copy of the show cause letter and was required to explain why he should not be dismissed. In the letter, Mr Oliphant uses the terms “An investigation undertaken and it was determined that…” And also “During this conversation you confirmed that driving over windrow and rocks was wrong but that it would be your word against your supervisor. You also spoke inappropriately to your supervisor including stating, “Ah, fuck you”.”

[138] The evidence reveals that prior to 8 October 2013, the “Ah, fuck you” allegation had never been raised with the applicant, had not been investigated in accordance with the process required by the respondent’s Managing Performance Policy and there was no complaint made by Mr Griffis to anyone about the allegation. “Miraculously” the respondent, on its own evidence interviewed the applicant on 10 October 2013 at which time Mr Griffis identifies a witness, Mr Garrett. Mr Garrett’s evidence was that he heard the comment between approximately 9:30 a.m. and 10:00 a.m. when he returned to the office for a “short meeting”. 129 The applicant sent a text message at 8:52 a.m. to Mr Daniel and the meeting with Mr Griffis, according to the applicant, occurred before 9:30 a.m. Mr Garrett changed his position to indicate he was popping in and out of the Office. However, the applicant submits the fact that Mr Garrett could not get the time right suggests that he was unlikely to hear the conversation that occurred.

[139] The respondent’s Managing Performance Policy states a‘thorough investigation process’ “will be carried out prior to disciplinary action being taken”. With respect to the allegation of swearing, there was no investigation process prior to the conclusion being drawn that the applicant had sworn and prior to him being required to show cause as to why he should not be dismissed for it. Section 6.2 ‘Investigation Considerations’ details elements of the investigation process. It says “… a comprehensive investigation into the alleged act must occur within a reasonable time frame”. Further on it says “In carrying out an investigation, the following issues will be considered” and goes on to read in part “observations and statements of others, including peers, superiors or subordinates, or any other person with relevant information”.

[140] Section 6.3 ‘Investigation Process’ advises at bullet point 1, “Advise the employee of the allegation against them” and further at bullet point 2, “Gather evidence (including interviewing all appropriate persons…”. At bullet point 5, it further advises “Inform the employee of the specific detail of the allegation” and at bullet point 6 “Give the employee an opportunity to respond to the allegation against them…” At point 7, “Record all investigation details in writing”. Section 6.3 ‘Investigation Process’ advises at bullet point 1, “Advise the employee of the allegation against them” and further at bullet point 2, “Gather evidence including interviewing all appropriate persons…”. At bullet point 5, it further advises “Inform the employee of the specific detail of the allegation” and at bullet point 6, “Give the employee an opportunity to respond to the allegation against them …” At point 7, “Record all investigation details in writing”.

[141] The respondent’s approach to the swearing incident defies the policy. Prior to the show cause letter, there were no statements taken. The applicant was not even asked about the incident nor was Mr Garrett, on the evidence of Mr Oliphant. There was no complaint made to be investigated.

[142] The applicant submitted Mr Garrett was giving evidence for the convenience of the respondent and “a pretence that he was involved in some investigation about the “Ah, fuck you” comment involving Mr Oliphant prior to 8 October 2013 and the show cause letter being produced when in fact he had not.” The Commission should conclude that on the balance of probability, the “Ah, fuck you”comment did not occur and therefore there was not a valid reason for the termination of employment.

[143] However, should the Commission decide the applicant did swear at Mr Griffis, “it still should not find a valid reason for termination of employment because there were significant procedural flaws. Conclusions had been drawn without investigation and there was no complaint made by the supervisor. The respondent did not provide procedural fairness, due process or follow its own investigation process.

Remedy

[144] The applicant asks to be reinstated to his former position with an order that his employment is deemed continuous and without loss of pay and that if the Commission finds in favour of the applicant an order requiring the parties to work out any wages lost between his termination and reinstatement. In the absence of any agreement concerning quantum, the assistance of the Commission will be sought.

[145] Should the Commission find in favour of the applicant in regard to the unfairness of the termination but determine it is not appropriate for the applicant to be reinstated, compensation should to be paid in lieu. In those circumstances the parties should be given the opportunity to make further submissions about the quantum of any compensation in lieu of reinstatement.

Respondent

[146] The applicant was dismissed on 16 October 2014 for conduct in breach of the respondent’s policies and procedures. The respondent denies that the dismissal was in any way harsh, unjust, or unreasonable and submits this application should be dismissed without any remedy to the applicant.

Disciplinary history

[147] The applicant commenced employment with the respondent on 31 August 2011 at the Mount Thorley Operations/Warkworth Mining mine. On 21 December 2012, the applicant was given a final written warning in relation to an incident in which he was found to have breached the respondent’s safety requirements by speeding in a light vehicle whilst carrying passengers.

[148] On 27 June 2013, the applicant was placed on a 12 month Performance Management Plan in relation to his excessive amount of sick leave. On 29 September 2013, after receiving the final written warning in December 2012, the applicant engaged in further unsafe conduct in breach of the respondent’s policies.

[149] The respondent submitted the events leading to termination were relatively simple. On 29 September 2013, the applicant was operating a truck, identified as T741. He made his first visit to the 312 Digger to collect material. He then travelled up to what is known as the ‘Flyover road’.When he approached the T-intersection he was required to give way to anyvehicles.

Windrow and inappropriate language allegations

[150] The applicant does not dispute Mr Griffis was travelling behind him following him up the road to the Flyover road. Mr Daniel, a Production Operator and Union Lodge Delegate was grading a section of the Flyover road and S-bends around the intersection. As the applicant was travelling up the road Mr Daniel was travelling down the Flyover road from the applicant’s right. The hierarchy rules required the applicant to give way to Mr Daniel who was approaching him from his right. At this point the evidence conflicts:

(a) Mr Griffis’ evidence was that Mr Daniel passed the intersection, that is, the applicant gave way to Mr Daniel or simply passed the intersection before the applicant got to point of crossing the Flyover road. The applicant then crossed the intersection and in doing so crossed over the windrow (just created by the grader). Mr Griffis states he called the applicant over the radio and directed him to park up at the crib huts. Mr Griffis parked his vehicle at the intersection and immediately took photos of the tyre tracks that were cut through the windrow.

(b) The applicant claims despite the hierarchy rules, Mr Daniel stopped and gave way to him at the intersection. The applicant admits he crossed the windrow and continued driving up the Flyover road only to be contacted by Mr Griffis over the radio some 15 seconds later and was told to park his truck at the crib huts.

[151] After taking the photos, Mr Griffis met with the applicant at the crib huts and challenged him about crossing the windrow. He did not deny crossing the windrow. The applicant denied the windrow contained any rocks or if it did, he had not seen them. Mr Griffis subsequently took the applicant back to his office where he showed him the photos he had taken. There is a further conflict in the evidence:

(a) Mr Griffis says that when the applicant was shown the photos he was aggressive and abusive. In summary Mr Griffis contends the applicant:

(i) claimed the photos could have been taken from anywhere;

(ii) said it was Mr Griffis word against his;

(iii) said he would deny everything;

(iv) claimed Mr Griffis was harassing him;

(v) was abusive, including saying words to the effect of “fuck you”;

(vi) threw the office door open when he told him to calm down and take some time out;

(vii) later the applicant offered an apology to Mr Griffis for his conduct.

(b) The applicant says:

(i) he was not aggressive or abusive;

(ii) he had a conversation with Mr Griffis about the material in the windrow and that Mr Griffis said he would receive a written warning;

(iii) he admits he said words to the effect of “this would not stand up in court”;

(iv) he denies he offered an apology for his conduct.

[152] Mr Garrett gave evidence that he was sitting in the office next door to Mr Griffis. He says:

(a) He was doing paper work and could hear the discussion between Mr Griffis and the applicant getting louder;

(b) He heard the words ”fuck you” and the door of the office slam;

(c) He got up to see what had happened and saw the applicant walking away from Mr Griffis’ office.

[153] On 7 October 2013, Mr Oliphant and Mr Griffis met with the applicant and his support person, Mr Daniel. The meeting had been scheduled as a performance management plan review for the applicant. However at the meeting, Mr Oliphant informed the applicant that the review would not proceed and that a show cause meeting was now scheduled for 8 October 2013. Mr Oliphant said words to the effect of:

This is obviously quite serious and certainly more serious than a review of your management plan. The way the process works is that we will meet you tomorrow at the start of shift and we will outline the reasons for considering terminating your employment. We will meet again on Wednesday which will be your opportunity to respond.

The show cause and further investigation of allegations

[154] On 8 October 2013, Mr Oliphant and Ms Clive met with the applicant and his two support persons regarding his conduct on 29 September 2013. The applicant was given a show cause letter from the respondent outlining its position and was told he would have the opportunity to provide any information to the respondent that he wanted it to consider. The applicant was given until 10 October 2013 to consider his position and prepare any response. At no point did the applicant or his Union support persons object to the process being adopted by the respondent.

[155] On 10 October, 2013 Mr Oliphant and Ms Clive met with the applicant and his support persons. The meeting went for approximately 90 minutes (with a 20 minute break). During the course of that meeting, the applicant admitted crossing the windrow. His explanation was that he did not believe there were any rocks in the windrow when he looked. The applicant denied any wrong-doing and attempted to distract attention from himself by alleging Mr Griffis had previously bullied and harassed him. This was the first time the applicant raised such allegations.

[156] The applicant provided no evidence to support his allegation that Mr Griffis had been bullying and harassing him other than the mere assertion at the meeting on 10 October 2013. The respondent investigated the claims. Following the meeting on 10 October 2013, Mr Oliphant and Ms Clive interviewed Mr Griffis regarding the bullying and harassment allegations. Mr Griffis denied bullying or harassing the applicant in any way and maintained he treated the applicant no differently to anyone else he worked with.

[157] Mr Oliphant and Ms Clive also interviewed Mr Garrett who confirmed he heard the applicant swear at Mr Griffis as alleged. Upon investigation, the respondent found there was no substance to the allegations. Ms Clive gave evidence that she had reviewed the information and after speaking with Mr Griffis she considered none of the allegations against Mr Griffis could be substantiated as harassment or bullying.

[158] Mr Griffis’ responses were clear, assertive and reasonable. Mr Griffis did however admit to using the words “smart arse” to the applicant. However there was clearly a context to that particular discussion. The applicant had never made any kind of bullying or harassment complaint to the respondent until the meeting of 10 October 2013 when it was made clear to him that his employment was at risk.

[159] The applicant’s employment was terminated for a valid reason and he was afforded procedural fairness. The letter of termination confirmed the respondent’s decision.

Valid Reason

[160] Section 387(a) of the Act requires there be a valid reason for the dismissal relatedto the person’s capacity or conduct (including its effect on the safety and welfare of other employees). Conduct which involves failures to follow procedures, which may result in significant damage to property of other employees, can be a valid reason for dismissal.

[161] In Woolworths Limited (t/as Safeway) v Cameron Brown 130 the Full Bench held, “a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable directionof the employer sufficient to justify the dismissal of common law will amount to avalid reason for termination.”

[162] The respondent submitted there is no doubt that as part of its safe operations windrows are not to be driven across in any circumstances, unless permission is granted by a supervisor or the grader responsible for the windrow. The integrity and preservation of truck tyres is important. Crossing windrows can cause tyre damage with dangerous consequences. The presentation, ‘Improving MTW Tyre Life’ given by Mr Oliphant to operators in late 2012 clearly states the windrow policy and the prohibition on crossing them.

[163] The applicant’s statement that he could not recall being informed operators were not allowed to drive over a grader rill is both self-serving and untruthful particularly given the steps taken steps to remind employees of the windrow policy and the importance of not driving in a manner which might jeopardise tyre integrity through regular toolbox meetings, presentations, signs and posters in the muster room depicting damaged tyres.

[164] The applicant’s evidence in cross-examination was that he had attended presentations which indicated the respondent’s position was that truck operators were not to drive over the windrow without seeking permission from the supervisor and permission must be sought from a supervisor before crossing the windrow.

[165] In cross-examination, both the applicant and Mr Daniel accepted that rock penetration damage is a major contributing factor to the respondent’s poor tyre performance. They also admitted attending pre-start meetings and presentations and seeing themed reminders around the workplace concerning tyre maintenance and safety.

[166] The potential safety consequences of tyre failure are very serious and could result in an explosion propelling objects towards people and equipment. In cross-examination, the applicant confirmed he understood windrows were not to be crossed:

Can you read that first paragraph for the commission, please? ---Crossing grader windrows has high potential to cause tyre damage from the unseen material they may contain. Grader windrows are not to be crossed or straddled at any time. Permission must be gained from your supervisor for exceptional circumstances. 131

You understand from that statement that grader windrows not to be crossed. Is that correct? ---That's correct. ….. 132

Permission must be gained from your supervisor for exceptional circumstances? ---Yes. 133

The exceptional circumstance being to cross the grader windrow. Is that correct? ---That's what, yes, you ask the supervisor; yes. 134

[167] There has been no suggestion that the applicant sought permission from his supervisor or the grader operator. In any event, he did not need to cross the windrow. Mr Griffis explained the established procedures which provide truck operators with several options when their path is blocked by a windrow, including:

(a) Truck operators can drive up the ‘wrong side’ of the road, until they have reached the end of the windrow, they can then safely cross to the correct side of the road.

(b) Windrows are to be kept to lengths of between 200-300 metres to help facilitate trucks driving up the ‘wrong side’ of the road. Mr Daniel indicated in cross examination that “we’re not to do runs any more than 300 metres.” 135

(c) A hierarchy of road rules exists to assist truck operators driving up the ‘wrong side’ of the road. These rules include the rule that unloaded trucks must give way to loaded trucks in circumstances where they are driving up the wrong side of the road due to a windrow;

(d) Truck operators can request a grader operator clear a path through the windrow to allow them to cross; and

(e) Permission may be sought from a supervisor or the relevant grader operator as to whether the windrow is safe to cross and it does not contain rocks which might damage the tyres of the truck before crossing.

[168] The respondent submitted the applicant’s own evidence confirms a breach of the policy. He did not seek permission from anyone to cross through the windrow. By his own evidence this was the first occasion he had travelled this road and had no knowledge whatsoever about material the windrow contained. His claim that it was common practice for operators to cross windrows does not pass any objective assessment:

(a) Such a proposition directly contravenes the express training and related presentations;

(b) Mr Daniel admitted that if an Operator crossed a windrow it would be an “unsafe act”. 136

(c) The windrow policy clearly states the respondent’s expectation that crossing a windrow is the exception and that permission must first be obtained.

(d) Mr Oliphant and Mr Griffis gave evidence that it is not common practice for operators to drive over the windrow; 137 (Mr Oliphant);138 (Mr Griffis)

(e) Mr Garrett indicated truck operators must seek clarification from the grader operator prior to crossing a windrow; 139

(f) Mr Daniel’s gave evidence that operators have “been instructed not to drive over the windrow, and not to drive over any rock larger than the size of your fist”. 140

(g) The applicant, despite claiming it was common practice for employees to cross windrows, in cross-examination admitted there was an obligation that the operator must first obtain permission. 141 He then sought to claim it was a matter of simply obtaining the supervisors permission at the start of shift despite not calling any evidence to support this claim. Mr Griffis and Mr Garrett both denied that such a practice exists.

[169] Nowhere in any policy before the Commission does it state the operator can unilaterally determine when they can cross a windrow. The applicant accepted that the rocks in Mr Griffis’ photographs are bigger than fist size and some were the size of a basketball. He was well aware of the importance of safety and his obligations. The applicant’s conduct during the investigation makes it clear that he saw no issue with his conduct, despite attending a number of presentations and ‘toolbox talks’ regarding policies concerning crossing windrows.

Photographic and GPS data evidence

[170] Like the applicant, the respondent also relied on the extensive range of photographic materials put in evidence. The applicant alleges Mr Daniel gave way and he entered the intersection and turned right across the windrow before Mr Daniel crossed the intersection. For the Commission to accept the applicant’s claim that tyre marks in Mr Griffis’ photographs were from a different truck, it must conclude, on the balance of probabilities, that Mr Griffis fabricated the photographs in some form of conspiracy. There is no evidence before the Commission to support that conclusion. For the applicant’s position to have any currency, Mr Daniel would need to have graded over any tyre tracks in the windrow left by the applicant’s haul truck as confirmed by the evidence of Mr Daniel, 142 Mr Griffis143 and Mr Oliphant.144

[171] Moreover, the respondent’s GPS data shows the applicant was operating T741 and Mr Daniel was operating GR850. The time stamped GPS data shows:

(a) At 08:27.56 a.m. T741 appears on the road leading to intersection with the Flyover road;

(b) At 08:28.08 a.m. T741 remains on the road approaching the intersection and GR850 appears on the Flyover road at the intersection;

(c) At 08:28.14 a.m. T741 and GR850 both appear at the intersection with T741 appearing to the right of GR850, indicating that T741 was giving way to GR850 prior to making a right-hand turn onto the main road;

(d) At 08:31.33 a.m. GR850 is shown to have looped around and re-passed the intersection;

(e) Mr Daniel’s evidence confirms when he returned to the intersection, around 08:31.33 a.m. he observed Mr Griffis’ light vehicle parked and refers to a discussion with Mr Griffis confirming he was taking photographs; and

(f) At 08:34.57 a.m., the next truck, identified as T741, appears on the road leading to the flyover road intersection.

[172] Neither the applicant nor Mr Daniel claimed that Mr Daniel gave way to the applicant. It was not raised with Mr Griffis on 29 September or included in his Incident Form also completed on 29 September 2013. For his part, Mr Daniel did not mention any interaction at all with the applicant’s haul truck in his Incident Form. Neither the applicant nor Mr Daniel raised this as part of any explanation of what occurred during the meetings on either 7, 8 or 10 October 2013 or in subsequent written evidence.

[173] The GPS data shows Mr Daniel returned to the intersection within three minutes. It also shows no haul truck passed through the intersection between the times Mr Daniel passed through when the applicant was present and when he returned to the intersection to find Mr Griffis parked nearby. For the tyre tracks to have appeared at the intersection, Mr Daniel must have passed in front of the applicant. It follows that if Mr Daniel had given way to the applicant, Mr Daniel would have graded the windrow that had been driven through and there would not be any tyre tracks. The only tyre tracks are those of the applicant - who admits he crossed the windrow.

Inappropriate language allegation

[174] The applicant denies he said the words “Ah, fuck you” or other abusive words to Mr Griffis on 29 September 2013 and claims Mr Griffis and Mr Garrett have colluded with respect to thisallegation in order to give the respondent a further reason to dismiss him. Mr Griffis’ allegation is corroborated by his handwritten notes 145 written on 29 September 2013:

[175] Mr Garrett gave evidence that while he could only hear the murmurings of the conversation, the words “fuck you”were said very loud, and were heard clearly. 146 Mr Garrett admitted in cross-examination that the precise time he overheard the conversation may be incorrect He heard the offensive comment and denied that he was lying about his recollection of the events. No evidence was lead to suggest Mr Garrett disliked the applicant, or wanted to have his employment terminated.147

[176] In cross-examination, Ms Clive indicated that despite the inappropriate language allegation being put to the applicant only during the show cause process, he still had an opportunity to respond. Moreover, at no stage following the show cause meeting or after the decision to terminate was announced was the issue raised by the applicant or the Union that an incorrect or incomplete procedure had been followed by the respondent in reaching its decision. The applicant was not terminated until some five days after the show cause meeting.

[177] Further, Ms Clive in cross-examination gave evidence that she did not agree with the proposition that absent of the “Ah, fuck you” allegation the applicant would not have been terminated.

[178] Mr Griffis explained his use of the word ‘excitement’ was:

because I was just dumbfounded that someone would be so stupid and blatantly drive over a windrow with large rocks in it when we go over it every day at start-up and it’s common knowledge and common practice and a part of our procedures that you stop and you do not proceed across a grader windrow. 148

[179] Mr Oliphant also gave evidence that Mr Griffis’ email was consistent with the type of email correspondence he would normally receive from him. 149

Consideration

[180] I have considered the submissions and all of the evidence, comprehensive as it was in determining this matter. I have also given consideration to the various authorities the parties referred to me.

[181] The applicant was not summarily dismissed. Accordingly, the onus falls to the applicant to satisfy the Commission that his dismissal was harsh, unjust or unreasonable.

The statutory requirements

[182] Section 385 of the Act relevantly provides that a person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed and the dismissal was harsh, unjust or unreasonable.

[183] Section 387 sets out the criteria to be considered by the Commission in determining whether a particular dismissal is harsh, unjust or unreasonable and provides the following criteria that must be taken 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 FWC considers relevant.

Whether there was a valid reason for the dismissal?

[184] In Selvachandran v Peteron Plastics Pty Ltd, 150 Northrop J considered the dismissal provisions of the Industrial Relations Act 1998 and determined:

...the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of subsection 170DE (1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based up the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed upon them. The provisions must ‘be applied in a practical and commonsense way to ensure that’ the employer and employees are each treated fairly... 151

[185] Moreover in Parmalat Food Products Pty Ltd v Kasian Wililo, 152 a decision which considered a dismissal related to a safety breach, the Full Bench stated:

The existence of valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render any termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. 153

The Full Bench also considered the importance of upholding safety rules in the workplace:

In our view this case raises important questions about the respective rights and obligations of employers and employees in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so can send a message to the workforce that safety breaches can occur with impunity. 154

[186] The civil standard of proof applies in unfair dismissal proceedings and the Commission must determine whether on the balance of probabilities, the conduct as alleged occurred, having regard to the evidence. Shortly stated, this means that upon consideration of the evidence admitted by the contesting parties, the account that is more probable that not is to be accepted. The inherent probability of the allegation is considered in that process.

[187] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, 155 the High Court observed:

When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can be validly said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities. 156

[188] The circumstances related to the windrow incident that gave rise to the applicant’s dismissal were very serious and could have given rise to tyre failure with serious consequences for the immediate safety of employees and equipment. The applicant admitted during the investigation that he had crossed the windrow as alleged and in fact has crossed a grader rill windrow many times before the incident that led to his dismissal.

[189] The applicant first could not recall being told there was a prohibition on driving over a windrow. His evidence in cross-examination was that he had attended presentations where operators were told not to drive over the windrow without seeking permission from the supervisor or grader operator. Also in cross-examination, both the applicant and Mr Daniel accepted that rock penetration damage was a major threat to tyre performance and the respondent reminded operators about tyre safety at pre-start meetings, presentations and themed reminders around the workplace.

[190] Having considered the evidence in its totality I am satisfied that the conduct relied upon by the respondent to dismiss the applicant did occur, that is, on 29 September 2013, the applicant drove over a windrow in breach of the respondent’s policies and procedures and contrary to the training he had received. I also find that on 29 September 2013 during the course of a meeting with Mr Griffis, that applicant used inappropriate language to communicate his frustration or displeasure with the allegation that he had driven over a windrow contrary to his training and in breach of the respondents’ policies and procedures.

[191] Accordingly, I find that there was a valid reason for the termination of the applicant’s employment. The allegations have been proven to the requisite standard. The applicant’s dismissal was for reasons explained in a letter of termination dated 16 October 2013. At that time, the applicant understood the respondent was relying on those reasons to support his dismissal

(b) Notification of the Reason

[192] I am satisfied and find the applicant was notified of the reasons for his dismissal in both the show cause letter dated 8 October and his letter of termination dated 16 October 2013.

(c)Opportunity to Respond

[193] The appellant complains that the investigation was not conducted in strict accord with the respondent’s Managing Performance Policy and as a result he was not afforded due process and procedural fairness. Having read the intent of the Policy, the respondent’s departures from the Policy are not significant in my view when weighed against the gravity of the applicant’s misconduct.

[194] The decision of the Full Bench in Anthony Farquharson v Qantas Airways Limited 157 is authority for the proposition that not all procedural deficiencies will render a dismissal harsh, unjust or unreasonable:

The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect. 158

[195] The investigation was conducted by the respondent’s supervisors. The allegations were relatively straightforward as the show cause letter and his letter of termination variously state. There was no doubt in my mind that prior to the show cause response meeting on 10 October 2013, he knew perfectly well the respondent’s allegations against him. There was no complaint at the time by his Union representatives representing and assisting him in the meeting with the respondent on 8 or 10 October 2013 that he was not being afforded procedural fairness.

[196] On balance, the respondent conducted a two-stage investigation into the allegations. In doing so, the only persons the applicant has identified post his dismissal that were not interviewed at the time of the investigation were largely other operators who he contended crossed the windrow regularly. However, on the evidence of the applicant and Mr Daniel, those operators had also been afforded the relevant training concerning the respondent’s polices dealing with tyre safety and maintenance. In conclusion, I am satisfied the applicant was given a proper opportunity to respond to the allegations against him.

(d) Unreasonable refusal to allow a support person

[197] I am satisfied the applicant was afforded an opportunity to have a support person present and the requirements of the sub-section were met.

(e) Unsatisfactory performance

[198] The reason for the applicant’s dismissal related to his conduct. He was also on a final warning at the time of his dismissal for a mine site speeding incident in December 2012.

(f) Size of employer and impact of human resources expertise

[199] The respondent is a large employer with dedicated human resources staff.

(g) Absence of dedicated human resource expertise

[200] This matter is not relevant.

(h) Other matters

[201] I have considered the applicant’s length of service, his employment record generally including the prior warnings considered by the respondent when deciding an appropriate disciplinary penalty.

[202] Compliance with workplace polices is mandatory and particularly where safety is concerned. There are many dangers inherent in coal mining.

[203] I have considered the harshness caused to the applicant as a result of his dismissal. I note that following his dismissal, the applicant obtained work in the Queensland coal industry on a fly in, drive in basis. I also consider that the applicant has been afforded a “fair go all round”.

Finding

[204] The applicant was afforded procedural fairness throughout the investigation into the allegations conducted by the respondent. The outcome of the investigation identified a clear and valid reason for the termination of his employment. As a consequence the applicant’s dismissal was not harsh, unjust or unreasonable. On the material before the Commission, I have determined there is no basis to find this was a disproportionate penalty. The application is dismissed.

COMMISSIONER

Appearances:

For the applicant, Mr K Endacott, Construction, Forestry, Mining and Energy Union, Northern Mining and NSW Energy District.

For the respondent, Mr A Dearden of counsel.

 1   Trevor Godfrey’s Witness Statement, Exhibit 1 at para 10

 2   Ibid at para 7

 3   Ibid at para 12

 4   Ibid at para 14

 5   Ibid at para 14

 6   Ibid at para 19

 7   Ibid at para 30

 8   Transcript at PN312

 9   Ibid at PN352

 10   Ibid at PN335

 11   Ibid at PN339

 12   Ibid at PN374

 13   Ibid at PN379

 14   Ibid at PN380

 15   Ibid at PN385

 16   Ibid at PN389

 17   Exhibit 1 at para 23

 18   Transcript at PN395

 19   Ibid at PN538

 20   Ibid at PN588

 21   Ibid at PN591

 22   Ibid at PN626

 23   Ibid at PN633 and 634

 24   Ibid at PN652

 25   Ibid at PN663

 26   Ibid at PN670

 27   Ibid at PN706

 28   Ibid at PN714-718

 29   Ibid at PN783 and 791

 30   Ibid at PN729

 31   Ibid at PN817

 32   Wayne Daniel’s Witness Statement - Exibit 7 at para 9

 33   Transcript at PN1573

 34   Ibid at PN1605

 35   Ibid at PN1620

 36   Ibid at PN1628

 37   Ibid at PN1669

 38   Ibid at PN1745

 39   Ibid at PN1846

 40   Ibid at PN1847

 41   Ibid at PN1928

 42   [2015] FWC 1080

 43   Ibid at PN1948

 44   Ibid at PN1959

 45   Angela Clive’s Witness Statement - Exhibit 5 at para 12

 46   Ibid at para 14

 47   Ibid at para 16

 48   Ibid at para 19

 49   Ibid at para 20

 50   Ibid at para 21

 51   Ibid at para 24

 52   Ibid at annexure ‘ACC-5’

 53   Transcript at PN1061

 54   Ibid at PN1083

 55   Ibid at PN1094

 56   Ibid at PN1185

 57   Ibid at PN1167

 58   Ibid at PN1311

 59   Ibid at PN1336

 60   Ibid at PN1399

 61   Ibid at PN1397

 62   Ibid at PN1400-1402

 63   Ibid at PN1403

 64   John Griffis Witness Statement - Exhibit 13 at para 4

 65   Ibid at para 8

 66   Ibid at para 10

 67   Ibid at para 11

 68   Ibid at paras 20 and 21

 69   Ibid at para 23

 70   Ibid at para 29

 71   Ibid at para 32

 72   Ibid at para 36

 73   Ibid at para 38

 74   Ibid at para 40

 75   Ibid at para 41

 76   Ibid at para 42

 77   Ibid at para 51

 78   Ibid at para 54

 79   Ibid at para 91

 80   Ibid at para 92

 81   Transcript at PN2377

 82   Ibid at PN2378

 83   Ibid at PN2380

 84   Ibid at PN2393

 85   Ibid at PN2399-2400

 86   Ibid at PN2425

 87   Ibid at PN2427

 88   Ibid at PN2443

 89   Ibid at PN2457

 90   Ibid at PN2461

 91   Ibid at PN2496

 92   Ibid at PN2577

 93   Ibid at PN2598

 94   Ibid at PN2670

 95   Justin Garrett’s Witness Statement - Exhibit 12 at paras 9-14

 96   Ibid at para 14

 97   Ibid

 98   Ibid

 99   Transcript at PN2035

 100   Ibid at PN2037

 101   Ibid at PN2038

 102   Ibid at PN2070-2073

 103   Ibid at PN2103

 104   Ibid at PN2111

 105   Ibid at PN2242

 106   Ibid at PN2245

 107   Ibid at PN2269

 108   Ibid at PN2350

 109   Tim Oliphant’s Witness Statement - Exhibit 18 at para 10

 110   Ibid at para 14

 111   Ibid at para 16

 112   Ibid at para 35

 113   Ibid at para 39

 114   Ibid at para 55

 115   Ibid at para 74

 116   Ibid at para 76

 117   Transcript at PN2968

 118   Ibid at PN2972

 119   Ibid at PN3087

 120   Ibid at PN3105

 121   Ibid at PN3147

 122   Ibid at PN3231

 123   Ibid at PN3256

 124   Ibid at PN3257

 125   Ibid at PN2042

 126   Ibid at PN2060

 127   Ibid at PN2069

 128   Ibid at PN2109

 129   Exhibit 12 at para 10

 130   PR963023 [2005] AIRC 830 at [34]

 131   Transcript at PN356

 132   Ibid at PN358

 133   Ibid at PN362

 134   Ibid at PN363

 135   Ibid at PN3350

 136   Ibid at PN1659

 137   Ibid at PN3387

 138   Ibid at PN2781

 139   Ibid at PN2084

 140   Ibid at PN1646

 141   Ibid at PN388

 142   Ibid at PN1743

 143   Ibid at PN2424

 144   Ibid at PN3410 and PN3442

 145   Exhibit 17

 146   Transcript at PN2238-2240

 147   Ibid at PN2221-2222 and PN2231

 148   Ibid at PN2457-2462

 149   Ibid at PN3433-3434

 150 [1995] IRCA 333

 151   Ibid at para [10]

 152   [2011] FWAFB 1166

 153   Ibid at para [24]

 154   Ibid at para [18]-[19]

 155 [1992] HCA 66; (1992) 110 ALR 449

 156   Ibid at [451]

 157   PR971685 [2006] AIRC 488

 158   Ibid at [41]

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