National Union of Workers v Viterra Limited - [2012] FWA 8004

[2012] FWA 7868

FAIR WORK AUSTRALIA

DECISION

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

Mr Michael McKay
v
Hail Creek Coal Pty Ltd T/A Rio Tinto
(U2012/8345)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 14 SEPTEMBER 2012

Summary: mine site shift supervisor - threatening telephone messages - rogue user postulated - telephone records - inherently improbable circumstances - application dismissed.

[1] On 22 May 2012, Mr Michael McKay (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in respect of his dismissal from his employment at Hail Creek Coal Mine, which is managed by Rio Tinto Coal Australia Proprietary Limited (“the Respondent”).

[2] The Applicant was dismissed from his employment on 10 May 2012. The Applicant had been employed with the Respondent since 8 March 2004. At the time of his dismissal, the Applicant was a production supervisor in the pre-strip operations. The Applicant supervised the D Crew. The Applicant had performed these supervisory functions since August 2006.

[3] The hearing in relation to this application took place in Mackay on 6 and 7 September 2012.

THE ALLEGATIONS: THREATENING TELEPHONE CALLS

[4] In March 2012 it appears that a number of allegations were made to the Respondent’s General Manager. These allegations included claims that the Applicant had been involved in making threats to Hail Creek employees, the theft of property from the mine, covering up a serious safety incident at the mine, and bullying and harassment and other inappropriate behaviour towards other employees.

[5] On 16 April 2012 the Applicant said he was called into a meeting with the Human Resources Manager, Mr Peter Fuss, and the Manager - Mining, Mr Michael Priestly.

[6] At that meeting it appears that the Applicant was advised that there had been a number of serious allegations raised about him and that he was being stood down pending an investigation.

[7] Mr Fuss telephoned the Applicant on 18 April 2012 and provided a broad outline of the allegations to the Applicant. The Applicant denied making the threatening calls and argued that his telephone was often left unattended. 1

[8] A second meeting was convened on 20 April 2012, according to the Applicant. At that meeting, the Applicant appeared with a support person, Mr Vince Campbell (the Applicant’s support person and solicitor). The Applicant confirmed his work mobile telephone number at that meeting. The Applicant also indicated that he had read and understood the Respondent’s Code of Conduct and use of Electronic Resources Policy, and had completed the Respondent’s communications course.

[9] The Applicant claimed that no detail regarding the particular allegations was provided at this meeting.

[10] A third meeting was convened on 1 May 2012. At that meeting, according to the Applicant, the allegations were made clear to the Applicant, and they arose from complaints made by two employees who were members of the Applicant’s D Crew. The Applicant was not provided with the full telephone records, but the date and time of the calls drawn from his mobile telephone records were made available to him. Nor was the Applicant provided a copy of a complaint made to the Police about one of the calls. Following the meeting, the Applicant was given an opportunity to respond to the allegations.

[11] The first allegation was that the Applicant had directed a threat to Mr Chris Campbell on or around 9:13 am on 21 August 2011. That threat had been conveyed by telephone message which had been left on Mr Campbell's telephone and converted to a text message. The message read in words to the effect:

“you are dead, you just don't realise it yet”. 2

[12] Mr Campbell had made a police report of the incident and various persons (including Ms Markeeta Maletz, the D Crew Supervisor, who is referred to in more detail below) had read the message.

[13] The second allegation was that he had directed a threat to Mr Frank Waite, on or around 7:48 pm on 2 September 2011. A recorded voice message was left on Mr Waite’s telephone with words to the effect:

“I’m going to kill you cunt”. 3

[14] Mr Waite’s telephone message was heard by Mr Campbell, Ms Maletz (the D Crew Supervisor) and Mr Jens Lenhard (other than Mr Waite).

[15] Neither of the messages remains in existence. It appears the telephone service provider causes the messages to be deleted after a period of time.

[16] The Applicant’s telephone records reveal that his mobile telephone was the source from which these messages were made. 4 The message left on Mr Campbell’s telephone formed part of his police complaint. Mr Waite had recorded the time and date of the message he received on his mobile telephone.

APPLICANT’S CONTROL OVER MOBILE TELEPHONE

[17] As mentioned earlier, the Applicant’s defence is that the mobile telephone was not always in his direct control and as such there had been opportunities for other persons to make the offending telephone calls.

[18] There had also been an exchange in the interview process as to whether the Applicant’s telephone was protected by a security code. It was not (bar on start up).

[19] There appear to be two principal sets of recurrent circumstances during which the Applicant ceased to have control over his mobile telephone. The first set of circumstances arose when he was on his way home by motor vehicle (and off site). The Applicant claimed - with support of his son who was also an employee of the Respondent and travelled home with him - that he would “on occasions” stop for fuel and take-away food (at a place known as the Junction) and later at a hotel (The Retreat) on his way home. On these occasions the Applicant said he would leave the mobile telephone on recharge in the vehicle, with the keys in the ignition turned to recharge, and would leave the car door unlocked. The Applicant's conduct in this regard was also observed by Mr Gavin Reid, and a co-worker from the Applicant’s D Crew and his son, Mr Glen McKay.

[20] In view of the date and time and the travel distance of the Junction from the Applicant's place of work, it was agreed that the telephone call made to Mr Waite’s mobile telephone on 2 September 2011 was likely to have emanated at a time when the vehicle had been stopped at the Junction.

[21] In view of the date and time, it was agreed that the telephone call placed to Mr Campbell was placed while the Applicant was at work.

[22] The Applicant contended in this regard that he would regularly leave his mobile telephone in an unsupervised context on site. For example, the Applicant claimed he would leave it on recharge at the dispatch office.

[23] The Applicant’s evidence that he would leave the mobile telephone on recharge at the dispatch office was contradicted by Mr Graeme Wotherspoon. Mr Wotherspoon is the Mine Monitoring and Control Supervisor for D Crew and works out of the dispatch office. His shifts mirror those of Mr McKay.

[24] Mr Wotherspoon gave evidence that he was particularly sensitive about the issue of supervisors recharging their mobile telephones in the dispatch office and had discouraged this practice. In any event, he explained that it was difficult to access the recharger unless a person was to reach across the Dispatch Operator whilst that person sat at the computer. He contended that the only mobile telephone recharger in the dispatch office is adjacent immediately to the Dispatch Operator.

[25] Mr Wotherspoon’s further evidence was that throughout 2011 if any person sought to charge their mobile telephones in the dispatch office he would explain very clearly to them that they would need to go somewhere else or he would lend them a recharge to charge their telephones at some other location. Mr Wotherspoon recalls in mid-2011 giving permission to Mr McKay to charge his mobile telephone, but only for the duration of their morning supervisors’ meeting (which ran for about 30 minutes at the most). The Applicant denied having any recollection of any such exchange with Mr Wotherspoon.

[26] Notwithstanding this, to Mr Wotherspoon's knowledge, this was the only occasion on which the Applicant had charged his work mobile telephone in the dispatch office, and Mr Wotherspoon had no recollection of him requesting to charge his mobile telephone on any other occasion.

[27] Mr Wotherspoon gave further evidence that the mobile telephones provided to the crew did not in his experience require charging during the day if they were charged overnight. This was the situation even if the mobile telephone was used frequently over the course of the day.

[28] Mr Wotherspoon did not support any claims that other supervisors recharge their telephones in the dispatch office and contended that it would be unusual for them to do so in any event given that the telephones are required (to give and receive communications) over the course of their shift.

[29] Mr McKay disagreed with Mr Wotherspoon’s evidence (other than as I have mentioned above). He claimed that he had never been discouraged from recharging in the dispatch office. Further, there were no difficulties in accessing the recharger because he merely walked around the Dispatch Operator to use the recharger that seemingly sat beside that Operator. The Applicant's evidence under cross examination, however, was not definitive as to his use of the recharger in the dispatch office during supervisors’ meetings. He only claimed that he “may have” recharged his phone at this time. 5

[30] The Applicant also claimed that Mr Wotherspoon was not always in attendance in the dispatch office as he was frequently outside the office smoking; the implication presumably being that any person may have had access to the Applicant’s mobile telephone.

APPLICANT’S MOTIVATION

[31] That said, the Applicant also contended that he had no motive to make the threatening telephone calls.

[32] The Applicant's son, a co-worker and family friend, Ms Jocelyn Mackenzie, and Mr Reid gave evidence that their experience of the Applicant’s demeanour and his interactions with other employees was at odds with any allegations of the kind made in this matter.

[33] There was evidence led in the proceedings that the Applicant might have had a discernible reason or motive for making the alleged telephone calls. If such evidence was proven, it might serve to support a wider finding on the balance of probability that the Applicant was the person who made the telephone calls to Mr Waite and Mr Campbell. This evidence therefore warrants investigation.

[34] It was claimed in the proceedings that the Applicant had been involved in a particular incident which caused him to have concerns about the conduct of Mr Campbell and Mr Waite, the two D Crew members who were recipients of the unwanted telephone communications.

[35] Mr Waite gave evidence that in mid-2011 (prior to the telephone messages being received) a near-miss incident occurred at the Respondent’s mining site.

[36] Mr Waite recalls that at the time he overheard the two operators involved discussing that there had been a close encounter between two trucks. The two operators were Mr Glen McKay and Mr Shannon McCallum. Mr Glen McKay is the Applicant’s son.

[37] Mr Waite claimed that he overheard the two operators discussing the near-miss with Mr McKay (the Applicant).

[38] A short time after that, Mr Waite claims he took leave. But before doing so, he discussed the issue with Mr Campbell, the other operator on D Crew referred to above. Mr Waite asked Mr Campbell to ensure the near-miss was elevated with an appropriate supervisor in his absence.

[39] Mr Waite claimed that upon returning from leave - some two weeks later – he enquired of Mr Campbell as to whether the near-miss incident had been inquired into. Mr Campbell was said to have replied that no action had been taken in regards to the near-miss incident despite the fact that he had elevated the incident to an appropriate level.

[40] Mr Waite then discussed the issue of the near-miss with his own direct supervisor Ms Maletz. Ms Maletz is said to have replied that the near-miss incident had been investigated and it was found that there had not been an incident as such. I note in passing that the investigation into the near-miss incident was carried out by the Applicant, who interviewed the two people involved.

[41] After agitating his concerns with his supervisor on a number of other occasions, Mr Waite’s work colleagues (Mr Samir Ibrahim and Mr Jens Lenhard) said words to the effect that, “Mr Waite better watch himself, because Mr McKay was not too happy and was going to get him”.

[42] Mr Waite states that from this point onwards his relationship with the Applicant became what he described as “frosty” and the Applicant would often “glare” at him and give him “dirty looks”.

[43] Mr Waite for his part recalls feeling upset that the incident had not been acted upon and that he had formed a view that the Applicant had covered up the near-miss incident because his son Glen McKay was involved in it.

[44] There is some evidence that Mr Waite himself did not hold the Applicant in strong regard.

[45] Evidence from Ms Alicia Kidd, a co-worker of Mr Waite’s, was that Mr Waite held a negative view of the Applicant and had indicated in an informal conversational exchange in early April 2012 that he was working to get rid of the Applicant. 6 This appears to have been on or around the time that Mr Waite had made various complaints to the Respondent about the Applicant's conduct more generally.7 There may have been others as well who harboured similar sentiments about the Applicant.8

[46] Though he did not make a great deal of it during the proceedings, Mr Campbell appears to have fallen into some difficulties in respect of his relationship with Mr McKay by mid-2011 (if not before). 9 Mr Campbell claims not to know the reasons for this though he recalls that Mr McKay had informed him that he had heard that he (Mr Campbell) was spreading rumours about him. Mr Campbell denied the allegation. Mr Campbell contends that his relationship with Mr McKay deteriorated after this.

[47] Mr Campbell's evidence corroborated that of Mr Waite in relation to Mr Waite having informed him about the near-miss incident and the request, which he fulfilled, to escalate the incident for purposes of further investigation.

[48] Like Mr Waite, Mr Campbell had been concerned that the near-miss incident was not characterised as a near-miss at all, and that no outcome had followed the investigation of the alleged incident.

[49] Mr Campbell said the failure for there to have been an investigation (at least beyond the initial interviews carried out by the Applicant (in his role as the supervisor) of his son and the other driver involved) caused him to have been shocked, given his experience in the coal industry.

[50] Mr Campbell also recalled that a few days after the incident during a pre-start meeting, the Applicant informed the crew that whoever was spreading rumours of a near-miss better “shut their mouths”, or words to that effect.

[51] The Applicant disagreed with these claims by Mr Campbell, and the contexts in which they arose. He does admit to an exchange with Mr Campbell in 2011 - following the near-miss incident - in which he and Mr Campbell discussed whether or not Mr Campbell had a problem with him and that the Applicant believed Mr Campbell to be running down people on the crew. 10 The Applicant also stated, notwithstanding this “there was absolutely nothing wrong with my working relationship” with Mr Campbell. The Applicant also claimed he had assisted Mr Campbell in seeking to advance his career.

[52] I further discuss the Applicant's own construction of comments below, in the context of Mr Lenhard’s evidence.

[53] At 9:13 am on 21 August 2011, while Mr Campbell was on annual leave, he states that he received the telephone voicemail message which had been converted into the text message referred to above.

[54] Mr Campbell also gave evidence that in or about late October 2011 or early November 2011 his wife was confronted at the door by a man wearing a black leather jacket and black bandana across his mouth standing at the doorstep. The man allegedly said words to the effect, “if your husband doesn't shut his mouth then there’ll be repercussions”. With that, the man slapped the metal security screen and departed. 11 Mr Campbell appears to have resigned his employment with the Respondent in December 2011 as a result of this development and other health issues.

[55] The Applicant denies any involvement in this alleged second threat to Mr Campbell.

[56] Mr Lenhard, to whom reference has been made above, in relation to Mr Waite's claim that he had been warned that Mr McKay was “out to get him”, gave further evidence in these proceedings.

[57] Mr Lenhard was a member of the D Crew throughout the period referred to above, other than when he transferred to the C Crew in early 2012. He has worked in the mining industry for 12 years and at the Hail Creek mine for approximately three years, seemingly as a multi ticketed operator. Whilst on the D Crew one of his supervisors was Mr Michael McKay, the Applicant.

[58] Mr Lenhard gave evidence that in approximately August 2011, he understood that a near-miss incident had occurred, and that it involved Mr Glen McKay. Mr Lenhard said that the entire crew had been talking about the incident.

[59] According to Mr Lenhard, the Applicant approached him following a visit by the mines inspector and stated that Mr Waite and Mr Campbell had called the mines inspector on him. Mr Lenhard went on to state that Mr McKay said that he had to obtain statements from Mr Botcher and Mr McCallum to get him “out of this mess”. The Applicant denies any such conversation taking place.

[60] Mr Lenhard gave further evidence that about a month after the near-miss incident - in September 2011 - Mr McKay pulled aside the crew members who operated dozers and loading units and said that he could not look after the crew anymore and that he would need to report all incidents because “these pricks” had reported him to the mines inspector.

[61] The Applicant’s construction of what he actually said was somewhat different. He maintains that at a toolbox meeting he made comment about the mining industry having attended site because of an unfounded complaint having been made about a near-miss incident. The Applicant contends that he said that there had been a significant part of his time spent completing witness statements (which was undue work) and dealing with the mining inspector on the basis of an unfounded complaint. 12 He also said that he commented that the issue (of the near-miss) had been blown out of all proportion because of rumours and that operators should not listen to rumours in future but rely on facts. The Applicant denies referring to anyone as “pricks”, as Mr Lenhard had claimed.

[62] In the middle of that shift on the same night after the toolbox meeting, Mr Lenhard stated that the Applicant had asked him to park his truck up on the road and to get down off the truck because he needed to talk to him in the car. Mr Lenhard said that Mr McKay then proceeded to tell him that, “Them bastards have put me in it and wrecked it for everyone.”

[63] Mr Lenhard gave further evidence that Mr McKay said words to the effect that, “he now had to report everything because they were watching him, and that if I had any issues he had to report it and go by the book”.

[64] Mr Lenhard’s evidence was not given for the reason he held a sympathetic attitude towards Mr Campbell. His record of interview with the Respondent on 16 April 2012 13 reveals an uncharitable view of Mr Campbell. Equally though, Mr Lenhard believed the Applicant was a divisive force on the shift.14

[65] The Applicant denies any such conversation and claims further that had Mr Lenhard been driving a truck at the time he would not have been under his supervision and he would have had no reason to stop Mr Lenhard to speak with him. Mr Lenhard’s evidence was that it was not exceptional to be pulled up while driving by his supervisor in order to clarify particular operational issues.

[66] It was on the night shift following that alleged discussion that Mr Waite brought to Mr Lenhard’s attention the death threat he had received by telephone. Mr Lenhard believed that the voice message was recognisably the voice of Mr McKay. This is in contrast to the evidence of Ms Maletz who was unable to recognise the voice as she said it was distorted. A short time after this, Mr Campbell also showed Mr Lenhard the text message he had received on his mobile telephone.

[67] On or about 2 September 2011, Mr Waite received the death threat referred to above.

[68] On the first day of the next swing, Mr Waite played the telephone message to Mr Campbell. Mr Campbell showed him the text message that he had received on his telephone. It was from a private number.

[69] Mr Waite claims that he and Mr Campbell only sustained a relationship for purposes of work only. That is, they did not socialise or have any connections outside of work. Mr Campbell's evidence was to the same point.

[70] It appears that Mr Waite and Mr Campbell on that same day reported the messages to Ms Maletz.

[71] She is said to have replied that she could do nothing about the telephone messages because she did not have any proof as to who was responsible for them. It appears that Ms Maletz warned Mr Waite and Mr Campbell about making any unfounded allegations about the source of the calls.

[72] Mr Waite and Mr Campbell thereafter took their concerns to the Police, with Mr Campbell having made a formal statement (which formed part of the evidence in these proceedings).

[73] In February 2012 Mr Campbell, who by this time had left the employment of the Respondent, contacted Mr Waite and informed him that the Police had become active in the matter of their complaints, and that he had been requested to provide a statement.

[74] Mr Waite, when he next returned to work, brought these issues to the attention of his then supervisor, Mr Marriot, who escalated the matter.

CONSIDERATION

[75] Initially, there does not appear to be any serious challenge to the actual existence of the telephone messages made to Mssrs Campbell and Waite, despite those messages no longer being in existence in electronic form.

[76] In any event, I have found the evidence of Ms Maletz to be compelling in regards to the existence and content of the messages.

[77] Ms Maletz had no interest in any issues between any of the parties and did not demonstrate any hostility towards the Applicant. The Applicant bore Ms Maletz no ill will, either. Importantly, Ms Maletz’s evidence of the content of the message left on Mr Waite’s telephone corroborated the evidence of Mr Waite himself and the other witnesses.

[78] Ms Maletz’s evidence was that she also read the text message on Mr Campbell’s mobile telephone. Her evidence corroborated the evidence of Mr Campbell himself (and of Mr Waite) as to the content of that text message.

[79] Nor is there any serious challenge to the claim that the mobile telephone used by the Applicant was the mobile telephone that was the source of the telephone calls made to the mobile telephones of Mr Waite and Mr Campbell.

[80] I add that the evidence also demonstrates that the Applicant's mobile telephone is a tool of trade, in effect, and critical to the performance of his duties. It is not an asset that the Applicant would have left lying around in various locations, and the Applicant did not suggest he would do so. 15

[81] Mr Priestly’s wider evidence (which was confirmed by the Applicant) was that neither Mr Campbell nor Mr Waite’s mobile telephone numbers were stored in the Applicant's mobile telephone. Because of this, the user of the telephone had to key in the telephone numbers manually. The Applicant’s own evidence supported this claim.

Was there a conspiracy by Mr Waite, Mr Campbell or Mr Lenhard?

[82] The Applicant’s defence, in part, against the allegations was that there was an effective conspiracy against him by Mr Waite, Mr Campbell or Mr Lenhard. It was Mr Waite who made a gratuitous remark in April 2012 to Ms Alicia Kidd, that he was “out to get” the Applicant.

[83] It does not surprise me that Mr Waite might make such a comment (though he denies he did).

[84] I say this because the D Crew’s relationships appear to have been strained, as Ms Maletz put it, in various ways over time. Some of these tensions arose from personality clashes between like-willed persons. Others were dissatisfied with their work arrangements and sought re-assignments. Others were frustrated by what they perceived - rightly or wrongly - as favouritism in job allocations. Ms Maletz, from her position as Supervisor and someone who held no ill feeling towards the Applicant, claimed there were “a lot of people on D crew pre-strip who don’t like” him. 16 There were objections taken to the Applicant's alleged behavioural excesses (in relation to women and an Indian crew member).

[85] Events fuelled these tensions. As discussed above, in early July 2011, the near-miss incident occurred which involved the Applicant's son. Mr Waite and others were of the view that the incident was never investigated thoroughly by the Applicant because it involved his son, Glen McKay. Then, there were allegations and rumours in late 2011 and early 2012 that the Applicant was involved in theft, along with others, of the Respondent's property.

[86] But I do not discern from the evidence that Mr Campbell and Mr Waite, motivated by these circumstances, conspired to create the messages on their telephones or to have others or another person access the Applicant’s mobile telephone so they could entrap him.

[87] One reason for this is that the formal complaints do not surface until around April 2012, when they arise in the context of a wider investigation into the Applicant's conduct, which appears to have been instigated by Mr Waite. That is, it is not until some six months after the telephone call messages were left that the telephone messages became the focus of any formal allegation against the Applicant, and then as part of a more generalised matter only. If it had been the intent of Mr Waite and Mr Campbell to foment a conspiracy around the telephone messages, it was one which unfolded at glacial pace and without the relevant parties having ever agitated any issues about the existence of any telephone records at all. In my view, on the evidence this seems unlikely.

[88] A better construction of the conduct of Mr Waite and Mr Campbell is that that while they harboured suspicions (and in Mr Waite’s case very strong suspicions) about the Applicant's responsibility for the messages, they could themselves prove nothing. It was only the unilateral actions of the Respondent in examining the Applicant's mobile telephone records that revealed the actual case that could be made against the Applicant. Until that time - and that was some six months after the threatening messages had been left - Mr Waite and Mr Campbell could not and did not take matters any further. They did not agitate for the Respondent to carry out any investigation of the Applicant or to seek access to his telephone records and themselves were peripheral in the particular exercise (in recovering the telephone records) that was carried out by Mr Fuss.

[89] As it was, Mr Waite and Mr Campbell only raised the issue of the threatening messages with their Supervisor, Ms Maletz, in early September 2011, who told them not to make unfounded allegations and that the issue was a matter for the Police. Under my questioning, Ms Maletz revealed that at the time neither Mr Campbell nor Mr Waite agitated for a company-based investigation or requested that the Applicant's mobile telephone records be searched. The matter was taken no further until April the following year. Even then, as I have mentioned above, neither Mr Campbell nor Mr Waite agitated for the Applicant's telephone records to be searched.

[90] There is no reasonable basis on the evidence for me to find, therefore, that a conspiracy existed to ensnare the Applicant in some manner. The conduct of Mr Waite and Mr Campbell lacks any systematic or coordinated intention. In short, Mr Waite and Mr Campbell are improbable co-conspirators. They are not closely linked outside of work, and lacked a plan to bring their conspiracy to fruition.

[91] And because they lacked a plan by which to bring the arguably fabricated telephone messages to fruition, I discern no realistic basis whatsoever to any related claim that any person or persons acted in concert with or in some manner aided Mr Waite and\or Mr Campbell to access the Applicant's mobile telephone for brief periods in which to leave the threatening messages. That is, having manufactured a means of accessing the Applicant's mobile telephone (in very constrained circumstances that I will set out below) and leaving the messages on the two mobile telephones, it is most improbable that the conspirators would have failed to devise an avenue by which they would incriminate the Applicant shortly thereafter.

[92] But if there is no reasonable basis on which Mr Campbell and Mr Waite concocted a conspiracy, what then is the basis to the claim that the Applicant himself left the threatening messages on their mobile telephones, or that the messages were left by some other unknown person or persons acting independently?

Were the calls made by another unidentified person?

[93] On 21 August 2011, the Applicant was performing duties as he ordinarily would at the mine site. The Applicant accepted at this time he would have been on a day shift and attending the usual morning supervisor’s meeting.

[94] On this day, the Applicant's telephone records show that at 8.26 am he rang his son, Glen McKay. At 8.36 am a call (of 84 seconds duration) was placed to the Step-up Supervisor, Mr Billy Lister. At 9.12 am a call was made to Mr Campbell’s mobile telephone. The duration of the call was 16 seconds. This is the call that resulted in the threatening message to Mr Campbell set out above.

[95] At 9.15 am, a call was placed to an apparently unknown person for 14 seconds.

[96] At 9.27 am the Applicant called his fiancé, for 22 seconds, and then again at 9.29 am for some 239 seconds.

[97] If the Applicant was to be believed, he would have been required to have lost control of his mobile telephone for a period in which the alleged, unidentified other user called Mr Campbell at 9.12 am. The time and date of this call to Mr Campbell is consistent with Mr Campbell’s evidence of the date and time on which he received his threatening message.

[98] As mentioned above, at this time of the working day, the Applicant would likely to have been in a supervisors’ meeting in the dispatch room, or have just left that meeting. The operators, such as Mr Campbell, Mr Waite and Mr Lenhard, would have been performing production duties at the mine.

[99] It seems to me to be improbable that another person, a rogue user (who was not one of the operators involved at that time in production) was responsible for the call made to Mr Campbell at 9.12 am on 21 August 2012. To conclude otherwise requires me to set aside Mr Wotherspoon’s evidence about re-charging practices in the dispatch office, and presume, instead, that another unidentified person - not an operator involved in production - accessed the mobile telephone in the open dispatch office, made the call to Mr Campbell, and did so at a point in time at which the Applicant, or any other person, could have appeared at any moment, particularly from the supervisors’ meeting.

[100] Equally, if the Applicant had been attending to duties in the office area adjacent to the dispatch office, the rogue user would have been exposed to ready detection at any time.

[101] I also indicate that I have some difficulties with the Applicant’s claim about his recharging practices.

[102] I say this because while he complained of a short battery charge life in some circumstances, the Applicant had access to a recharger (which he shared only with Mr Eichmann, the Step-up Supervisor) in the Village by which he could recharge his mobile telephone overnight. And he also had a telephone recharger in his car as well, in which he drove around the mine site for some 10 hours a day (out of his 12 or so hour shift). Again, putting Mr Wotherspoon’s evidence to one side, there seems little reason why the Applicant might bother recharging his telephone for such a short period (over the morning supervisors’ meeting or otherwise) when he had access to other rechargers, and monopoly control over his vehicle recharger, in which he spent some 10 hours a day (and several hours before the morning meeting).

[103] Generally, it seems to me to be most unlikely that an unknown person - presumably not an operator who would have been engaged in production duties - would have had an opportunity to access the Applicant's mobile telephone at the time and on the day as recorded. But this is made even more so by the conjunction of these circumstances with the circumstances of the second telephone call, which was made to Mr Waite on 2 September 2012.

[104] On that day the Applicant had finished his usual swing and was on the way home from the mine site.

[105] At the time the call was made the Applicant accepted he would have likely been at the Junction roadhouse, refilling his vehicle and\or purchasing take-away food. His evidence does not suggest that he could have been anywhere else at that time given the time at which his swing had ended and the distance travelled by the time the call to Mr Waite was made (at 7.44 pm).

[106] The Applicant's evidence was that he would only stay a short period at the roadhouse before moving on. The evidence of Mr Reid and Mr Glen McKay was to the same effect. The Applicant's evidence was that he would leave his mobile telephone in the vehicle, and would leave the vehicle unlocked and with the keys in the ignition on the accessory setting to allow the mobile telephone to recharge. The Applicant said that he would leave his car unattended, and sometimes out of site, while he purchased take-away food or stood on the veranda. As stated above, this general practice was corroborated by Mr Reid and Mr Glen McKay.

[107] The Applicant's evidence was that at some point on the evening of 2 September 2011, a person unknown accessed his mobile telephone, dialled Mr Campbell’s mobile telephone number, and then dialled Mr Waite’s mobile telephone number. The telephone call to Mr Waite resulted in the threatening message being left as I have described earlier. There is nothing in the evidence that relates to the second call to Mr Campbell, and Mr Campbell appeared to have no recollection of any call being made to him or message left at that time. Mr Waite does, however.

[108] The mobile telephone record reveals that the Applicant made a call at 7.21 pm to his fiancé for 37 seconds. Another call was made at 7.24 pm to an unidentified recipient. Then a call was made at 7.43 pm to Mr Campbell’s mobile number, and at 7.44 pm a call was made to Mr Waite.

[109] At 7.46 pm, a call was made to Mr Eichmann - the Step-up Supervisor - for 87 seconds. At 7.48 pm a 17 second call was made to Mr Waite’s mobile telephone number. It was this telephone call that resulted in the threatening message being left on Mr Waite’s mobile.

[110] At 8.20 pm a call was made to the Applicant's fiancé.

[111] It appears to me that on the pattern of usage set out above there is very little probability at all of an unknown person accessing the Applicant's mobile telephone in order to entrap the Applicant. The mobile telephone calls are all in a compacted time period and involve calls to the Applicant's fiancé, to Mr Campbell and twice to Mr Waite. Between the first and second call to Mr Waite a call for 87 seconds was made to Mr Eichmann. It seems to me that it is most unlikely, and more, that a person acting surreptitiously within a very short band of time (outside a roadhouse from which the Applicant could emerge at any time) would have placed the calls to Mr Campbell and Mr Waite, and then had a lengthier conversation with Mr Eichmann, the Step-up Supervisor (who otherwise had no role in these proceedings), before placing the offending and longer call to Mr Waite.

[112] Alternately, it is equally implausible that an unknown person could have accessed the Applicant’s mobile telephone to make the initial calls to Mr Campbell and Mr Waite, then return the telephone to its original position while the Applicant returned to make a telephone call to Mr Eichmann, only to return seconds after the Applicant had concluded that call to make the final call to Mr Waite.

[113] There is no suggestion whatsoever in the evidence of who such a person could be or who was at the roadhouse that night, or how he or she came to be there.

[114] But that aside, the evidence in relation to the pattern of usage of the Applicant's mobile telephone and the circumstances at the time suggests to me that the Applicant was at all times in control of his mobile telephone and made the calls himself that evening.

[115] When the circumstances of the mobile call being made on 21 August 2011 and 2 September 2011 are set beside one another, it becomes inherently improbable that on these two different dates and in two different physical locations a person or persons unidentified, sufficiently motivated, could have accessed the Applicant's mobile telephone to make the threatening calls (or messages) to Mr Campbell and Mr Waite. That is, the conjunction of the two separate circumstantial contexts in which an unknown person or persons surreptitiously took control of the Applicant's mobile telephone (on the two different occasions, more than one week apart) and made calls to Mssrs Campbell and Waite, is so improbable as to be implausible.

[116] I add that there are some further issues that go to the Applicant’s credibility and bring into question the plausibility of his claim that a rogue user surreptitiously accessed his mobile telephone to make the calls on the two separate occasions.

[117] As already commented, the Applicant at all times denied making the telephone calls to Mr Campbell and Mr Waite. The Applicant also expresses doubt about his accusers’ motivation. If he had made the telephone calls, the Applicant claimed that both employees were members of his crew and should have readily identified his telephone number had he called them:

Each of those persons should have known my mobile phone number. Each of those persons would have known my number for the purposes of contacting me if there was a work issue or if there was a difficulty in getting to work for any particular shift or roster. I therefore do not understand how each of these persons would not have known my phone number if they received a message on their phone. 17

[118] Under cross-examination, however, the Applicant denied having knowledge of or access to the telephone numbers of either Mr Campbell or Mr Waite, and also denied in effect having any reason to call them. 18 The Applicant's claims in this regard do not sit comfortably with his claim in his witness statement that both Mr Campbell and Mr Waite should and would know his number because of various operational necessities.

[119] The Applicant also argues impliedly that his mobile telephone was not caller ID barred or blocked (hence either Mr Campbell or Mr Waite could have identified his telephone number if he had called them). Mr Waite’s evidence supports this presumption. 19 If this were so, as it appears to be, the unknown rogue user(s) who is\are postulated to have accessed the Applicant's mobile telephone would have been required to alter the telephone settings prior to the telephone’s use (and possibly then restore them to their original settings after making the calls). This adds somewhat to the complexity of the exercise in accessing the Applicant's mobile telephone within limited periods of time.

[120] But perhaps more importantly, this matter in turn raises a further question as to why the rogue user(s) would ever take this course of action (which served to bar the Applicant's\caller’s telephone number to the call recipient), if the intention of any such person was to ensnare the Applicant in a fabricated misconduct matter. This adds to the implausibility of the telephone use scenarios postulated by the Applicant. That is, the conduct of the alleged rogue user(s) at first blush would appear counter-intuitive given the very purpose for surreptitiously accessing the Applicant's mobile telephone in the first place.

Was there a valid reason for dismissal?

[121] Because I have concluded that the Applicant was responsible for the telephone calls in question, I must evaluate his conduct for the purposes of s.387(a) of the Act, which concerns whether there was a valid reason for the dismissal relating to the person's capacity or conduct (including its effect on the safety and welfare of other employees).

[122] I have found that that the Applicant is responsible for leaving threatening messages on Mr Campbell's and Mr Waite's mobile telephones. I have set out the content of those messages above. The content is extreme and threatening. The telephone calls were made on the communications equipment provided by the employer. The use of that equipment is regulated by the employer's policies and procedures, such as the Code of Conduct, the Electronic Resources Policy and the Safe Communications Policy.

[123] The Applicant’s conduct was inconsistent with his employer's policies and procedures (in relation to the “Offensive Behaviour” provisions of the Code of Conduct), and more so, his conduct in making the threatening messages fundamentally was inconsistent with his contract of employment. The conduct I have found to have taken place attacks the trust and confidence the Respondent must have in one of its employees. Consequently, in my view, on the basis of the evidence I have considered, the Respondent possessed a valid reason for the dismissal of the Applicant.

[124] The Applicant was dismissed summarily upon the findings having been made in the investigatory process conducted by the Respondent. I agree that the conduct in leaving the messages on the mobile telephones which are of the particular content I have set out above warrants summary dismissal.

[125] Notwithstanding this, the representatives of both the Applicant and of the Respondent led argument about whether or not the further requirements of s.387 of the Act were met in the circumstances. In the context of a summary dismissal, further considerations as they arise under s.387 of the Act do not appear to be required. However, in the circumstances, I will make some passing observations about each of those requirements.

[126] Section 387(b) of the Act requires Fair Work Australia to take into account whether the Applicant was notified of the reason for his impending dismissal. The Applicant was given notice of the issues that were central to the allegations. The statutory requirement to provide notice was therefore given effect.

[127] Section 387(c) of the Act requires Fair Work Australia to take into account whether the Applicant was given an opportunity to respond to the reasons related to his conduct that were said to be the reasons for the pending dismissal. The Applicant was provided a 48 hour period in which to show cause and invited to a further meeting. The Applicant responded to the show cause correspondence within 24 hours and elected in that correspondence not to attend a further meeting.

[128] The Applicant is of the view that he was not provided an opportunity to examine the telephone records at the time of the interview and as a consequence, he was not able to reply in a complete manner to the allegations.

[129] It was also argued that the Applicant did not have an opportunity to consider the complaint to the Police made by Mr Campbell in which he set out the details of the message content.

[130] In some circumstances the provision of inadequate information in relation to allegations can be an important consideration. In this case, however, the Applicant was provided with sufficient detail about the allegations as to the dates and times of the calls and to whom they were made and their content to allow for a reasonable response in defence of his conduct. The Applicant’s response to the show cause letter through his solicitor attests to this being so.

[131] The Applicant has had access to the telephone records and all other materials for the purposes of these proceedings and I do not discern any marked evolution in his defence or any new uncertainties as to his whereabouts or the location of the telephone at any of the relevant times.

[132] I do observe that there are some peculiarities to this particular application, however. The fact that the actual conduct occurred some six months prior to the allegations being made does put the parties in a more difficult situation than they would have been had the conduct occurred in close proximity to the allegations having been made. But as I have said above, the allegations in relation to the threatening telephone messages emerged from a wider enquiry, and the fact that the conduct is separated in time from the allegations does not excuse the conduct itself. My decision has been based upon the evidence that has been adduced, and the matter of the timeliness of the allegations and its impact upon the Applicant’s capacity to respond cannot be taken any further.

[133] I further add in passing observation that this was not a case in which the Applicant’s movements were highly variable or whimsical or discretionary. The Applicant performed duties in a regularised shift roster and that structured his movement patterns more so than other people.

[134] Section 387(d) of the Act concerns whether or not there was any unreasonable refusal by the Respondent to allow the Applicant to have a support person present to assist in any discussions relating to the dismissal. In this matter, shortly after the investigatory stage commenced, the Applicant was represented by a support person being a solicitor (the Applicant's legal representative in these proceedings). Therefore, no issue arises in relation to any non-compliance with s.387(d) of the Act.

[135] Section 387(e) of the Act concerns circumstances where a dismissal is being considered in the context of unsatisfactory performance. This matter does not concern unsatisfactory performance but rather concerned misconduct. There are therefore no relevant considerations to be evaluated as a consequence.

[136] Section 387(f) of the Act and s.387(g) of the Act concern circumstances in which the procedures followed in effecting the dismissal were themselves affected by the size and the availability of human resource management specialists and related expertise of the employer. No issue was raised in these proceedings in relation to either the size or availability of sufficient expertise in relation to the manner in which the dismissal was affected.

[137] Section 387(h) of the Act requires Fair Work Australia to take into account any other matters that it considers relevant to the dismissal.

[138] There are no apparent circumstances that could be taken into account in this regard. It may be argued that the magnitude of the conduct that I have found to have occurred did not warrant dismissal either in summary form or by way of notice. But as I have indicated above, the conduct was of a threatening nature and in abusive terms. Because of this, the conduct as I have found it to have occurred fundamentally disrupted the employment relationship.

CONCLUSION

[139] For the reasons that I have discussed above, I do not consider that the dismissal of the Applicant was harsh, unjust or unreasonable. A summary dismissal for misconduct was warranted. It appears to me that there were tensions between the Applicant and Mr Campbell, Mr Waite and Mr Lenhard. I do not think that I have a comprehensive evidentiary perspective on all the interactions between these four parties over time, and who was at fault or being truthful in relation to which particular incident or another (other than as I have set out above). But it is enough to say that out of that body of interactions, there emerged sufficient motivation for the Applicant to conduct himself in the way that I have found.

[140] As a consequence of my findings above I must dismiss the application as made by the Applicant under s.394 of the Act, and do so.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr V. Campbell, solicitor of Macrossan and Amiet Solicitors for the Applicant.

Mr C. Murdoch, Counsel as instructed by Ashurst Australia for the Respondent.

Hearing details:

6 and 7 September.

2012.

Mackay.

1 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-15.

2 Witness statement of Mr Chris Campbell dated 1 August 2012 at PN 12.

3 Witness statement of Mr Frank Waite dated 1 August 2012 at PN 18.

4 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-12; Witness statement of Mr Michael Robert Priestly dated 1 August 2012 - Attachment MP-11.

5 Transcript of proceedings dated 6 September 2012 at PN 508.

6 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-18.

7 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-2.

8 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-21.

9 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-10; Witness statement of Ms Emily Minns - Attachment EM-4.

10 See Affidavit in reply of Mr Michael McKay dated 21 August 2012 at PN 8.

11 Witness statement of Mr Chris Campbell dated 1 August 2012 at PN 26-27.

12 Transcript of proceedings dated 6 September 2012 at PNS 298, 302.

13 Witness statement of Ms Emily Minns - Attachment EM-5.

14 Witness statement of Ms Emily Minns - Attachment EM-5.

15 Transcript of proceedings dated 6 September 2012 at PN 182.

16 Witness statement of Mr Peter Grantley Fuss dated 1 August 2012 - Attachment PF-14.

17 Affidavit of Mr Michael McKay dated 10 July 2012 at PN 6.2.

18 Transcript of proceedings dated 6 September 2012 at PNS 365-369, 483-487.

19 Transcript of proceedings dated 6 September 2012 at PN 721.

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