Mr Walter Meacle v BHP Coal Pty Ltd

[2013] FWC 2331

[2013] FWC 2331

FAIR WORK COMMISSION

DECISION

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

Mr Walter Meacle
v
BHP Coal Pty Ltd
(U2012/15867)

COMMISSIONER SPENCER BRISBANE, 16 MAY 2013

s.394 — application for unfair dismissal remedy — harsh, unjust or unreasonable — previous general protections Federal Court proceedings.

Introduction

[1] This decision relates to an application made by Mr Walter Meacle (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair dismissal remedy on the basis that the termination of his employment from BHP Coal Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] This decision does not make reference to all of the materials filed in relation to this matter; however all of such have been considered.

[3] The application was filed on 22 November 2012 and, at the request of the parties the application was referred to the Fair Work Commission (at the relevant time and time of the dismissal known as Fair Work Australia, presently referred to as FWC or the Commission), as presently constituted, for conciliation. The matter was not able to be conciliated.

[4] At the conclusion of conciliation the Applicant requested that the matter proceed to arbitration. The representatives of both parties confirmed that they did not object to the Commission, as presently constituted, to continue to arbitrate the matter. On that basis Directions were issued for the filing of material and a date was set for hearing.

[5] The Applicant in this matter was represented by Mr Chris Newman, Legal Officer of the Construction, Forestry, Mining and Energy Union (CFMEU or the Union). The Respondent was represented by Mr Mike Coonan of Herbert Smith Freehills.

Background

[6] This matter has been the subject of prior proceedings in the Federal Court of Australia. The CFMEU had previously filed an application, pursuant to s.372 of the Act, alleging that the Applicant was the subject of adverse action in contravention of the general protections provisions of the Act.

[7] That matter proceeded to a final determination in the Federal Court in favour of BHP Coal Pty Ltd (the Federal Court decision). 1 In the Federal Court decision his Honour, Justice Lander, made several findings of fact as to the conduct of the Applicant that are relevant to these proceedings.

[8] The Federal Court decision made particular findings of fact as relevant to the s.372 application. The parties proceeded on the basis that the findings of the Federal Court decision, as to the Applicant’s conduct, were not challenged in this application for the Commission to consider separately whether the subsequent dismissal was harsh, unjust or unreasonable.

[9] The Applicant was employed with the Respondent from 17 July 2006, until his dismissal on 9 November 2012. The Applicant was initially employed at the Norwich Park mine site. In about April 2012 the Applicant was transferred to the Peak Downs mine due to the closure of the Norwich Park mine site. The Applicant was an active member of the Union.

[10] Throughout 2011 and 2012, the CFMEU, and other Unions, were in enterprise agreement negotiations with the Respondent. The enterprise agreement negotiations between the parties were difficult and lengthy, at times heated, and were the subject of some employees taking protected industrial action to progress their claims. 2

[11] The Applicant was one employee who chose to take protected industrial action at the Norwich Park site, as was his entitlement under the Act.

[12] Allegations, that were the subject of findings in the Federal Court decision, were raised regarding the Applicant’s conduct on 31 March 2012, during the period of protected industrial action. The allegations included threatening behaviour and using offensive language at an employee who had chosen not to participate in the industrial action and to continue working.

[13] The Applicant was stood down from work while the allegations were being investigated. On 30 April 2012, the Respondent requested that the Applicant “show cause” as to why his employment should not be terminated (the show cause process).

[14] As a result of the show cause process, the CFMEU commenced proceedings in the Federal Court, pursuant to Part 3-1 of the Act. Interlocutory relief was sought in those proceedings to prevent the Respondent from proceeding with the show cause process, but were not pursued on the basis that the Respondent undertook not to proceed with its investigation until the conclusion of the Federal Court proceedings. 3

[15] The Federal Court issued its decision on 2 November 2012. The whole of the application before that Court was dismissed.

[16] Following the Federal Court decision the Respondent proceeded with the show cause process. After the Union responded on the Applicant’s behalf, in relation to the show cause process, the Applicant’s employment was terminated on 9 November 2012.

[17] The letter of termination relevantly stated:

“As discussed during our meeting earlier today, I have applied the Just Culture Decision Tree and have taken all relevant matters into account, including the findings of the investigation, relevant information obtained during the investigation, your employment history with BMA and your responses.

In the circumstances, given the serious nature of the substantiated allegations and your breaches of BMA’s Workplace Conduct Policy and BHP Billiton’s Code of Business Conduct, I have decided to terminate your employment with effect from today.”

Relevant legislation

[18] The relevant sections of the Act, as they stood at the time of dismissal, are set out below.

[19] Section 385 of the Act provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[20] Section 394 of the Act provides:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

.....”

[21] Section 387 of the Act provides:

“387 Criteria for considering harshness etc.

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

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

[22] No objection was taken as to the jurisdiction of the Commission to arbitrate the matter. The Commission is satisfied that the Applicant was a person protected from unfair dismissal and that the application is not otherwise jurisdictionally barred.

Summary of Federal Court decision

[23] It is appropriate at this time to briefly summarise the findings of Lander J of the Federal Court in relation to the conduct of the Applicant the subject of these proceedings. 4 Not all of the findings of the Federal Court will be referred to in this decision but only those most relevant. The whole of the Federal Court decision has, however, been considered.

[24] The Federal Court decision highlights the, at times, “heated” nature of the bargaining process involving the Respondent and its employees. The Respondent, on 29 July 2011, corresponded with the various Unions involved in bargaining. An excerpt of the correspondence reads:

“BMA has been made aware of threatening, intimidating and otherwise inappropriate conduct by the demonstrators. On this basis, the demonstration which your unions organised, managed and co-ordinated was not peaceful.

In particular BMA understands that:

● employees and contractors were told to ‘go home’, ‘fuck off’, ‘fuck off home’, ‘go home, dogs, and don’t fucking come back!’ as they entered or exited the mine. The words ‘you’re scabs, you’re scabs, you’ve got no morals’ were also yelled at employees and contractors as they entered or exited the mine;

● banners with the words ‘No principles Scabs No guts’ were displayed at the entrance to the mine;

● signs were placed on the traffic control devices contrary to the approved traffic control plan;

● the registration or identification details of contractor vehicles, which entered or exited the site, were recorded and displayed on a chalk board that was mounted on a CFMEU Norwich Park Lodge branded trailer facing the site entrance road;

● employees and contractors were video recorded or otherwise filmed as they entered or left the mine site;

● at approximately 1am on 28 July 2011, an individual was standing in the middle of the road taking video footage (before he was asked to return behind the barriers by local security); and

● loud music was played over loud speakers, which interfered with the safe operation of communications between a traffic controller and personnel involved in road works that occurred at the front entrance to the site.” 5

[25] The alleged conduct primarily took place in relation to an employee, Mr Loader, who had decided to resign his membership of the Union and to cease participating in industrial action. It was alleged that the Applicant made rude gestures, and yelled offensive remarks at Mr Loader while he attempted to cross the picket line and enter the mine site.

[26] At paragraph 28 of the Federal Court decision Lander J summarised part of the allegations as follows: 6

“Mr Loader said that Mr Meacle has a very distinct voice. The window of Mr Loader’s vehicle was down and as he passed Mr Meacle he heard Mr Meacle yell out ‘scab cunt’, whilst at the same time raising a finger on both hands and moving his hands up and down.”

[27] Further at paragraph 35 his Honour stated:

“...Mr Meacle’s own evidence was that he was ‘yelling out … along with other members around me’.”

[28] And further at paragraph 41:

“Mr Citadella said that he was told by Mr Loader that “Mr Meacle had both arms in the air giving him the finger and yelling abuse and calling him ‘you scab cunt’.”

[29] Further examples of the Applicant’s conduct, in the same nature as those discussed above, are addressed in the Federal Court decision.

[30] In regards to the policies of the Respondent his Honour quoted: 7

“...In the Workplace Conduct Policy it is stated:

Each employee is expected to treat others in the workplace (at work and outside of work) with courtesy, dignity and respect.

The Code of Business Conduct refers to the company’s charter values, including “Respect” and “Integrity”, and states:

BHP Billiton does not tolerate any form of harassment in any of our work places…

Employees must never engage in actions or behaviours that entail harassment or bullying.

Harassment is an action, conduct or behaviour that a reasonable person would find unwelcome, humiliating, intimidating or offensive.”

[31] His Honour referred to the evidence of Ms Taylor, who was responsible for investigating the allegations against Mr Meacle, as such:

“Ms Taylor said in evidence that she was told by Ms Hyatt that Mr Meacle was alleged to have jumped over the barriers at the Norwich Park picket line and called an employee, Mr Loader, a “scab cunt”, and that Mr Meacle directed his two middle fingers at Mr Loader as Mr Loader drove through the picket line. She was informed by Ms Hyatt that Mr Meacle was the Treasurer of the union. She was informed that Mr Loader had made his initial complaint to Mr Fraser and Mr Perry. She was provided with Mr Loader’s statement. She was told that three other employees had given statements regarding signage that they had seen when crossing the picket line. The words “Scab” and “Loader” were on some of the signs. She was also told that Ms Hyatt had spoken to Mr Loader on 5 April 2012 with Mr Perry and Mr Mark Nam, a solicitor of Freehills. She was given a copy of Mr Nam’s notes.” 8

[32] Further in relation to the use of the word “scab” his Honour found: 9

“A “scab” is a derogatory term, which is uttered for the purpose of criticising and upsetting the person to whom it is directed.

Mr Crompton and Mr Meacle, and all of the others on the picket line, were aware that there were signs at the picket line referring to Mr Loader as a “scab”. Mr Crompton refused to take those signs down, notwithstanding that he knew those signs were calculated to disparage Mr Loader, because his membership had instructed him not to take the signs down.

I reject Mr Crompton’s evidence that the signs did not refer to Mr Loader. Indeed, later in cross-examination he contradicted that statement and he said that the signs with the words “loada shit” referred to Mr Loader.

The signs were maintained at the picket line to intimidate and embarrass Mr Loader for crossing the picket line.

Mr Crompton accepted that if Mr Loader had seen the signs he would have been upset.”

[33] Further, the purpose of yelling was, his Honour found:

“The purpose of yelling out to the cars was to have the drivers of the car hear what was said. Whether Mr Loader’s windows were up or down, and whether there was music and other noise, Mr Meacle and his fellow unionists were yelling with the intent of having Mr Loader hear what they said.”

[34] Further and specifically in relation to Mr Meacle’s conduct:

“I find that Mr Meacle said and did what Mr Loader claims, and he did so for the purpose of humiliating and harassing Mr Loader, because Mr Loader had resigned from the union and crossed the picket line. It follows therefore, in my opinion, that Ms Taylor was right to arrive at her conclusion in her investigation that Mr Meacle had done what Mr Loader had claimed he had done. Mr Stewart was also right to accept that recommendation.

That conduct, which I find Mr Meacle guilty of, was inconsistent with the purpose of the picket line, which was not designed to intimidate or put people in fear. It is also inconsistent with the union policy of not involving individual identification of people as they go through the line. His conduct was outside the reason for the protest.

Mr Meacle knew what he said in the picket line and knew that what he said was in breach of the company’s Code of Conduct. It was conduct of which Mr Meacle was aware the union would disapprove.

Accepting Mr Loader’s evidence that Mr Meacle yelled out at him “scab cunt” and raised a finger on each hand and moved his hands up and down, supports the finding arrived at by Ms Taylor, which was relied upon by Mr Stewart at the time that he gave the show cause letter to Mr Meacle.” 10

Summary of the Applicant’s submissions and evidence

[35] The Applicant’s case relied on evidence from the Applicant himself and filed submissions in accordance with Directions.

[36] The Applicant submitted that the Commission should find that his termination was a case of unfair dismissal on two alternate bases. Primarily the Applicant submitted that there was no valid reason for the dismissal. In the alternative it was submitted that dismissing the Applicant was disproportionate to the conduct alleged and that other disciplinary measures should have been considered.

[37] The Applicant persisted in denying that he engaged in the conduct as alleged by the Respondent, and relevantly as found by the Federal Court decision. It was however put to the Applicant in cross-examination and, while maintaining that he disagreed with the findings of Lander J, he did “respect” those findings. 11

[38] It was however submitted by the Applicant that despite the findings of the Federal Court, the Applicant’s conduct, as found, is not a valid reason for termination. This argument proceeded primarily on the basis that the “level of conduct” 12 did not warrant termination.

[39] In this regard the Applicant submitted that three criteria should be considered by the Commission. These included the language and the actions of the Applicant, the context in which the misconduct occurred and the Applicant’s employment history.

Language and actions of the Applicant

[40] The Applicant submitted that use of the word “scab” is not as offensive as it once was.

[41] The Applicant referred to some matters in which the use of the word has been considered. 13

[42] The Applicant continued submitting that “calling someone a ‘scab’ just by itself, could not have caused such deep fear and anxiety in an employee that could justify the response that the Respondent took” (emphasis added). 14 The use of the words “just by itself” ignores the facts as found by the Court that this was done in combination with other actions.

[43] Further it was submitted that the actions of the Applicant were not “personal in nature”. 15

Context of the misconduct

[44] The Applicant submitted, in reliance on Foley and Martin v BHP Coal Pty Ltd, 16 that conduct in the context of protected industrial action is a relevant consideration in disciplinary matters.

[45] The Applicant submitted that the conduct was at a period of high tension between employees and management. The circumstances of the conduct were that the employees involved the use of a picket line in progressing their claims in relation to enterprise bargaining. In this regard the Applicant submitted that the picket line was designed to place pressure on the Respondent in bargaining and that employees choosing not to continue would have “undone” the action.

Applicant’s service record

[46] The Applicant referred the Commission to the Applicant’s 6 year employment record. During that time the Applicant has been previously disciplined on two occasions, in the form of a warning each time, for failing alcohol tests prior to commencing work. It was submitted however that these were several years ago and do not relate to any ongoing behavioural issues.

[47] The Applicant also referred to the performance review system that the Respondent uses in which it was submitted that the Applicant was “more than satisfactory” being “above average”.

[48] The Applicant relied on a series of case authorities in support of the reinstatement of the Applicant. These have been considered against the current circumstances where the Applicant argued the dismissal was disproportionate to the conduct.

[49] The Applicant sought reinstatement of his employment as well as orders maintaining continuity of service and compensation.

Summary of the Respondent’s submissions and evidence

[50] The Respondent submitted that it was bound, at common law and by its statutory obligations, to eliminate bullying and harassment in its workforce.

[51] To that end the Respondent referred the Commission to both the BMA Workplace Conduct Policy (the Policy) and BHP Billiton Code of Business Conduct (the Code of Conduct). Both of these documents were submitted as applicable to the Applicant’s employment. 17

[52] The Respondent submitted that relevantly the Policy states:

“Each employee is expected to treat others in the workplace (at work and outside of work) with courtesy, dignity and respect.”

[53] The Policy also states that inappropriate workplace conduct includes certain forms of behaviour which will not be tolerated, including discrimination, harassment and victimisation. The Policy further states that inappropriate workplace conduct will not be tolerated and that disciplinary action may be taken against any employee who breaches the Policy, which may include termination of employment. 18

[54] The Code of Conduct states that the company’s charter values, include respect and integrity. These values are further expanded within the Code of Conduct which states:

“BHP Billiton does not tolerate any form of harassment in any of our workplaces…”

“Employees must never engage in actions or behaviours that entail harassment or bullying…”

“Harassment is an action, conduct or behaviour that a reasonable person would find unwelcome, humiliating, intimidating or offensive.”” 19

[55] The Respondent submitted that the Commission “must” rule that the Applicant engaged in misconduct. This was based upon the findings of the Federal Court decision.

[56] It was further submitted that even if the termination was disproportionate to the misconduct that does not render the otherwise valid reason, invalid.

[57] The Respondent does not contend that proportionality is irrelevant but submitted that it is not relevant to whether the dismissal was for a valid reason.

[58] The Respondent submitted that the issue of proportionality of the disciplinary outcome was the crux of the dispute between the parties.

[59] The Respondent submitted that the Respondent’s actions in investigating the conduct of the Applicant and the subsequent termination were done in light of the serious obligations or duties that the Respondent owes to its employees to eliminate workplace bullying and harassment.

[60] The Respondent submitted that the conduct of the application was “unreasonable and intimidatory”, and amounted to workplace harassment. The conduct interfered with the right of other employees, in particular Mr Loader, to work in a harassment free environment.

[61] This behaviour, it was submitted, was a deliberate and wilful breach of both the Policy and the Code of Conduct. Further it was submitted that such breach was a serious breach.

[62] The Respondent submitted that given the gravity of the Applicant’s wilful and deliberate breach of the Policy and the Code of Conduct the Applicant breached the duty of good faith and fidelity. Further it was submitted that the Applicant’s conduct throughout the investigation was inconsistent with the duty of good faith, trust and confidence.

[63] Just as the Applicant referred the Commission to authorities regarding the more favourable interpretations of the word “scab” so did the Respondent refer the Commission to authorities about the “special significance” of the term in the coal industry. But the Respondent submitted that the authorities were not required for the purposes of this determination because the Federal Court decision specifically made findings as to the use of the term (quoted above).

[64] Regardless the Respondent submitted, that the use of the term in conjunction with the word “cunt” and the physical gestures made by the Applicant exacerbated the gravity of the conduct and reinforced that the Applicant did so wilfully. The Applicant’s conduct was done in full knowledge of the Policy and Code of Conduct.

[65] The Respondent further submitted that the authorities relied upon by the Applicant could be distinguished on the basis of the evolution of the area of workplace bullying since the time of those decisions. The Respondent submitted that the Applicant’s cases turned on the particular facts and that the statutory obligations of the Respondent now are more explicit than they were at the time of the earlier decisions.

[66] A further submission of the Respondent was that in the particular circumstances of this case the Respondent has explicitly taken the time to point out the concerns of the Respondent in relation to some of the conduct being engaged in at the time. The Respondent identified particular correspondence that was sent to the Unions and employees regarding the expectations of employees who chose to engage in protected industrial action.

[67] The Respondent submitted that it did take into account the service history of the Applicant.

Consideration

Section 387(a): whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[68] The Applicant’s submission proceeded on the basis, primarily, that there was no valid reason to terminate the Applicant’s employment.

[69] The submissions, discussed above, regarding the connotations about the use of the word “scab” and the lack of “personal nature” in the conduct towards Mr Loader do not satisfy the Commission that there was no valid reason for the termination.

[70] While it is accepted that the use of the word “scab” on its own may not, in certain circumstances, cause offence, the authorities are clear that consideration must be had to the circumstances, as a whole, as before the decision-maker. In this matter, the Federal Court has found that the use of the word is derogatory and uttered for the purpose of criticising and upsetting. 20 The particular facts and circumstances as before the relevant decision-maker must be taken into account.

[71] The facts of the matter are that there had been a sustained period of industrial action. The employee at whom the Applicant’s conduct was directed, Mr Loader, was an employee who had ceased participating in the protected industrial action and had decided to work. The Federal Court decision documents a series of events in which references were made to Mr Loader, specifically by the use of the word “Loader” on signs and at one point even a noose hanging above a sign that referred to Mr Loader. It is noted however that these further instances were not the subject of specific findings in the Federal Court decision nor did they form the basis of the alleged misconduct of the Applicant. They are referred to as part of the consideration of the circumstances of the matter. The final determination in this matter has not relied on these further instances.

[72] Relevantly to this decision are his Honour’s findings in the Federal Court decision that the Applicant was aware of some of these surrounding circumstances; in particular, Mr Meacle was aware of the signs making specific reference to Mr Loader as a “scab”. 21

[73] Further the Federal Court decision accepted that the purpose of the signs was to intimidate and embarrass Mr Loader for choosing to cross the picket line. 22

Section 387(b): whether the person was notified of that reason

[74] The Applicant conceded that he was notified of the reason for the termination of his employment. 23

[75] The Respondent relied upon the concession in the Applicant’s evidence, accepting that he was aware of the notification of the termination. The Applicant was clearly notified.

Section 387(c): whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[76] The Applicant conceded that he was given sufficient time to respond to the allegations regarding his conduct. He also conceded that he was asked to show cause into his actions and that he responded to that request to show cause. The Respondent relied upon the concession of the Applicant. The process adopted by the Respondent allowed the Applicant an appropriate opportunity to respond in full knowledge of the conduct complained of by the employer.

Section 387(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

[77] The Applicant submitted that there were a number of meetings involving the Applicant and the representatives of the Respondent. The Applicant further submitted that at the first meeting, being on the 7th of April 2012, the Applicant was not allowed a representative of his choice, being Mr Brad Crompton.

[78] The Respondent submitted that while the Applicant was not “given” his first choice of support person, the Applicant conceded that he did have a support person for the duration of the meeting. The Respondent submitted that this was not a breach of the requirements of the Agreement.

[79] The Applicant was afforded a fair process at the meeting.

Section 387(e): if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[80] The Applicant submitted that unsatisfactory performance was not related to the dismissal. The Respondent agreed with this submission.

[81] The Applicant’s work performance did not form part of the reasons for the termination of his employment. The termination relates to the Applicant’s conduct during the incident in question. His work performance was not in question for the reasons relating to the dismissal.

Sections 387(f) and 387(g): 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 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

[82] The Applicant submitted that the size of the Respondent’s enterprise did not impact on the procedures in effecting the dismissal. The Applicant further submitted that the Respondent’s access to an extensive human resource department did not impact upon the procedures followed.

[83] The Respondent accepted the concessions made by the Applicant in relation to the size of the enterprise and access to specialist knowledge.

[84] It is noted that the Respondent is a large employer with access to specialist expertise in the areas of human resources and industrial relations and accordingly the Applicant’s dismissal has been examined against the commensurate standard of practice expected where such resources are available. The Applicant was afforded procedural fairness. Given the circumstances of the conduct and the policies of the Respondent applicable to all their sites; it was not a case where redeployment to an alternative site could be considered.

Section 387(h): any other matters that FWA considers relevant

[85] The Applicant submitted that the Commission should take into account the Respondent’s alleged disproportionate response, being the termination of employment, to the Applicant’s conduct. The Applicant relied upon this matter as an alternate argument to the valid reason argument.

[86] The Respondent submitted that the dispute between the parties was particularly relevant under this section of the Act. The issue of proportionality in relation to the Respondent’s submissions has been discussed above.

[87] In the decision of Selak v Woolworths Limited a Full Bench of the Australian Industrial Relations Commission stated: 24

“Although proportionality is not expressly identified as a consideration to which the Commission must have regard, the issue will often arise in a consideration of these factors and the overall consideration of whether the termination was ‘harsh’. As stated by McHugh and Gummow JJ of the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 61 IR 32, a termination, although founded upon a valid reason, may nevertheless be found to be harsh ‘because it is disproportionate to the gravity of the misconduct in respect of which the employer acted’.”

[88] The findings of Landers J at paragraphs 234 and 235 state:

“That conduct, which I find Mr Meacle guilty of, was inconsistent with the purpose of the picket line, which was not designed to intimidate or put people in fear. It is also inconsistent with the union policy of not involving individual identification of people as they go through the line. His conduct was outside the reason for the protest.

Mr Meacle knew what he said in the picket line and knew that what he said was in breach of the company’s Code of Conduct. It was conduct of which Mr Meacle was aware the union would disapprove.”

[89] The Respondent took into consideration the effect the dismissal would have on the Applicant and the Applicant’s history with the company. The breach was a serious and grave one, against the statutory and common law duties of the company, as well as the Respondent’s policies and code of conduct and also the policies of the union in regard to picket lines.

Conclusion

[90] A valid reason is one that is sound, defensible and not capricious, fanciful or spiteful. 25

[91] Where the question involves an Applicant’s misconduct the Commission must determine, on the balance of probabilities, whether the alleged misconduct occurred 26 and further whether it amounted to a valid reason for termination.

[92] As previously mentioned the parties accepted that the Commission was to proceed on the basis that the findings of the Federal Court decision are accepted. The Applicant did not seek to challenge the findings.

[93] The questions for determination are in the context that it is accepted that the conduct, as alleged, occurred. Accordingly, the question before the Commission is did the conduct give rise to a valid reason to terminate the Applicant’s employment. The second question is was the decision to terminate employment disproportionate to the misconduct.

[94] The Respondent made specific submissions as to why this particular matter could be distinguished from the matter of Foley which was relied upon by the Applicant. The Respondent was cognisant of the matters that arose during the time of Foley and the effect that the environment at the time had on employees and more importantly the community surrounding the mine site.

[95] To that end the Respondent ensured that it set out it’s expected behaviours of staff not only at work but also in matters outside of work where interactions occurred between staff. Since the time of Foley the legal landscape has changed significantly. Changes have been seen regarding the statutory obligations of employers and employees in relation to safety and, more specifically harassment and bullying in the workplace, and the legislative industrial relations scheme has changed a number of times. The Act specifically provides allowances for staff to engage in protected industrial action in certain circumstances. More importantly however, the Act protects employees from adverse action because they do or do not engage in industrial activity or have or do not have an industrial affiliation. It is important to note here the just as the Applicant had the right to engage in protected industrial action and Mr Loader had the right to chose to not engage in protected industrial action and should have been free to do so free from harassment from his employer but also from his fellow employees. The Applicant was cross-examined on this point and accepted that Mr Loader had these important rights. 27 Whilst maintaining that he did not agree with the findings of the Federal Court decision the Applicant accepted that they were nevertheless the decision of the Court and did not seek the challenge them.

[96] The Respondent had sent communications to the Union to raise their concerns about allegations of inappropriate behaviour at the site where industrial action was occurring. The Respondent had put in place, since the decision in Foley, a code of conduct and had trained their staff in that code of conduct.

[97] The Applicant conceded in cross examination that the workplace health and safety management system is a vital part of the mining operation. 28 The Applicant further conceded that he was aware that the allegations being investigated by the Respondent were breaches of the Policy and Code of Conduct.29

[98] The Applicants evidence was that he was aware that Mr Loader was scared to come to work and had asked the Respondent for escorts to and from work. 30 And the Applicant conceded that Mr Loader was not going home “safely” in the context of the Policy and his actions.31

[99] Importantly for this determination regarding the Applicant’s knowledge of the Policy, the following exchange occurred in cross-examination of the Applicant:

“Can I then take you to the - I think we might be done with the code. Can I take you to the workplace conduct policy, it's JS2, the statement of Jarrod Stewart, Commissioner, and I'll have a copy for Mr Meacle. So this is the workplace conduct policy, you're familiar with the policy?---I am.

In fact you've been trained in the policy and the code, haven't you?---I was, yes.

What, four weeks before the incident occurred?---Possibly, I'm not sure when but we were all run through it like as a team.

Then 11 months before that also when the industrial action first began you were taken through the code and the conduct policy?---I don't recall, possibly were.

If Mr Stewart said you were you wouldn’t accept that?---I'd accept it if he said it, yes.” 32

[100] The Applicant also specifically conceded the conduct occurred:

“I'll stop you there. So again the conduct the court found you had engaged in was shouting or swearing at Mr Loader?---That is correct, yes.

And you're threatening him?---Yes, that's correct.

And humiliating?---Yes.

It was insulting and name calling?---Yes.

I also put it to you it was also intended to isolate him or alienate him from other people, wasn't it?---Yes, that's (indistinct).

Single him out and make him different to everybody else?---That's correct.” 33

[101] It must be acknowledged that the context of these questions was the findings of the Federal Court decision, but these findings were not sought to be challenged by the Applicant.

[102] The evidence supports the conclusion that the Applicant engaged in the conduct in the manner alleged by the Respondent. The Applicant was aware of both the Policy and Code of Conduct and was aware that employees had the right to engage or not to engage in industrial activity or have an industrial affiliation. The Applicant however ignored these matters and engaged in the conduct causing insult and intimidating Mr Loader. The conduct is serious and is a valid reason for dismissal.

[103] The remaining question is therefore, whether the disciplinary penalty, being dismissal, was commensurate with the actions of the Applicant. Given the findings of the Federal Court decision and the Commission’s conclusion as to the valid reason for dismissal the penalty applied by the Respondent was in line with the seriousness of the Applicant’s breach.

[104] The issue of proportionality of the dismissal based on the conduct has been considered. 34 Given the findings of the Federal Court decision outlined above and the findings of the Commission as to the serious nature of the breaches of both the Code and the Policy the dismissal was proportionate to the seriousness of the conduct of the Applicant.

[105] The dismissal of the Applicant was not harsh, unjust or unreasonable. The application is dismissed.

[106] I Order accordingly.

COMMISSIONER

 1  CFMEU v BHP Coal Pty Ltd [2012] FCA 1201.

 2   See generally CFMEU v BHP Coal Pty Ltd [2012] FCA 1201 at [15]-[21].

 3   CFMEU v BHP Coal Pty Ltd [2012] FCA 1201 at [5].

 4   Ibid.

 5 The full correspondence is extracted at ibid at [20].

 6 Ibid at [28].

 7   CFMEU v BHP Coal Pty Ltd [2012] FCA 1201 at [55]-[56].

 8 Ibid at [74].

 9   Ibid at [215]-[220].

 10   Ibid at [233]-[236].

 11   Example, Transcript PN77.

 12   Applicant submissions at paragraph 14.

 13   For example AFMEPKIU v BHP Iron Ore Pty Ltd [2001] WAIRComm 2371 per Kenner C, at [46]; Foley and Martin v BHP Coal Pty Ltd [2001] AIRC 601.

 14   Applicant submissions at paragraph 22.

 15   Applicant submissions at paragraph 23.

 16 [2001] AIRC 601.

 17   The Policy and Code of Conduct were attachments to exhibit two in the proceedings.

 18   BMA Workplace Conduct Policy p 3.

 19   Respondent submissions at paragraphs 5-7.

 20   CFMEU v BHP Coal Pty ltd [2012] FCA 1201 at [215].

 21 Ibid at [216].

 22 Ibid at [218].

 23   Applicant submissions at paragraph 34.

 24   Selak v Woolworths Limited [2008] AIRCFB 81 at [17].

 25   Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 372.

 26   Brinks Australia Pty ltd v Transport Workers’ Union of Australia PR922612, 18 September 2002 per Guidice P, Acton SDP and Hingley C at [7].

 27   Transcript at PN55-PN77.

 28   Transcript at PN43.

 29   Ibid at PN45-PN48.

 30   Ibid at PN80-PN81.

 31   Ibid at 104-PN105.

 32   Ibid at PN149-PN153.

 33   Ibid at PN175-PN180.

 34   Selak v Woolworths Limited [2008] AIRCFB 81 at [17]. Although a decision under the Workplace Relations Act 1996 the reasoning is still applicable to matters under s.394 of the Act.

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