Norbert Fluri v BHP Billiton Nickel West Pty Ltd - [2022] FWC 1

[2022] FWC 1 [Note: An appeal pursuant to s.604 (C2022/732) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Norbert Fluri
v

BHP Billiton Nickel West Pty Ltd

(U2021/5197)

COMMISSIONER WILLIAMS

PERTH, 5 JANUARY 2022

Application for an unfair dismissal remedy

This decision concerns an Application made by Mr Norbert Fluri (Mr Fluri or the Applicant), pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is BHP Billiton Nickel West Pty Ltd (BHP or the Respondent).

This matter was subject to a hearing before the Fair Work Commission (the Commission) on 7 and 8 September 2021. At the hearing, evidence for the Applicant was given by Ms Chiara Fluri, the Applicant’s daughter, Ms Molly Gordon, Ms Kayla Murphy, and the Applicant himself. Evidence for the Respondent was given by Mr Jonathon Owens, Mine Manager, Dr Edward Petch, Forensic Psychiatrist at OSHGroup, Mr Roberto Kilian, Production Superintendent, Mr Timothy Scott, Maintenance Execution Superintendent, Mr Ivor Belling, Fixed Plant Maintenance Supervisor, and Mr Craig Appleton, Maintenance Execution Supervisor.

Factual findings

The Applicant was first employed with BHP on 6 June 2018. He was employed as a Fixed Plant Technician.

In January 2020 he reported to the site medical centre with a skin condition. In March 2020 he was treated by dermatologist Dr Hannes Gebauer. He diagnosed the Applicant’s condition as Nodular Prurigo, “probably exacerbated by your current medical state and the stresses and strains thereof.” [1]

In March 2020 the Applicant was elected as a safety and health representative for the maintenance department.

On 25 March 2020 the Applicant says that the following scenario occurred involving Mr Craig Appleton (Mr Appleton) and Mr Timothy Scott (Mr Scott). The Applicant says he walked into the workshop after returning from underground. He was wearing shaded safety glasses at the time. Mr Scott asked him to look at a job. The Applicant raised his safety glasses to his forehead in order to have a clear view of the job he was looking at. The Applicant’s evidence was that Mr Appleton then came into the area and grabbing a pair of safety glasses aggressively threw them at his feet from about four meters away. The Applicant says Mr Appleton swore at him and made aggressive and derogatory comments and ordered him to put the glasses on. The Applicant says he picked up the safety glasses and put them on.

A short time later, the Applicant decided to see Mr Scott in his office to express his disappointment with him for not intervening when he witnessed Mr Appleton’s behaviour. The Applicant told Mr Scott he would no longer accept this kind of behaviour towards him. He says Mr Scott reluctantly agreed to speak to Mr Appleton about this incident.

The Applicant’s evidence was that since that incident, he has never received any feedback from Mr Scott nor received an apology from Mr Appleton.

The Applicant says that since that incident, Mr Scott has picked on him on a couple of occasions for not wearing safety glasses and threatened to issue him a written warning if he were to catch the Applicant again. I note that the Applicant was not disciplined for not wearing safety glasses.

The Applicant says after this incident he kept a record of any breaches regarding the wearing of personal protective equipment in the workshop by other employees. The Applicant states he had recorded numerous breaches on a daily basis with no consequences for any of the offenders.

There is no evidence the Applicants himself took any action regarding these breaches in his capacity as the elected health and safety representative for the workshop.

The Applicant says however he reported a number of breaches of the lifesaving rules but none of his reports were acted on.

Mr Appleton’s evidence was that the Applicant had, over the years, become unapproachable and would frequently get angry and would be rude or disrespectful when he discussed a work issue with him. Mr Appleton had reported this behaviour to the Applicant’s supervisor Mr Ivor Belling (Mr Belling).

Regarding the 25 March 2020 incident, Mr Appleton says he noticed the Applicant was not wearing his safety glasses in the workshop. It is a requirement that safety glasses are worn in the workshop at all times. He says he had already asked the Applicant twice that shift to put on safety glasses and when he saw him not wearing them a third time, he got a pair of safety glasses out of the cupboard and tossed them to the Applicant with a soft underhand throw. His evidence was he said to the Applicant “here, put these on” and then said, “I’ve asked you twice already”.

Mr Appleton denies swearing or making any aggressive or derogatory comments to the Applicant.

Mr Appleton says that a day or two after the incident, Mr Scott approached him and told him to maybe next time not to do it the way he had. He replied to Mr Scott that he would take that on board but that he had already asked the Applicant twice to put on safety glasses.

In his evidence, Mr Appleton acknowledges that he should have handled the situation with the Applicant better.

Mr Scott’s evidence in chief was that the Applicant was a very passionate person about his areas of knowledge and his personality is quite fierce. He says that he held a number of coaching discussions with the Applicant in an attempt to manage his behaviour following clashes he had with people in the team. Mr Scott’s evidence was the Applicant is quite a loud and intimidating person and is easily angered.

Under cross-examination, Mr Scott explained that no written warnings were issued in relation to the Applicant’s demeanour because initially the conversations were just discussions with the Applicant. On 18 February 2020 Mr Scott did make a diary note after one such discussion. This is the first step in the disciplinary process. Mr Scott explained these issues did not escalate any further from that point in time until the events that led to the Applicant’s dismissal occurred.[2]

Regarding 25 March 2020, Mr Scott’s evidence was he and the Applicant were in the workshop talking about some work that needed to be performed. They were looking upwards at some pipework. Mr Appleton, who was the Applicant’s direct supervisor and responsible for the workshop they were in, approached them and grabbed a pair of safety glasses. He says Mr Appleton said to the Applicant “here put these on” and tossed the glasses underhand towards the Applicant. Mr Scott states it was a soft toss.

Mr Scott’s evidence was the Applicant was not wearing safety glasses properly at the time. He says from the tone of Mr Appleton’s voice he could tell it was not the first time he had asked the Applicant to put on safety glasses. Mr Scott’s evidence was that he had previously had the same issue with the Applicant on a number of occasions where he was not wearing his safety glasses when required.

Mr Scott’s evidence was that sometime later, the Applicant came to see him and told him he did not agree with the way Mr Appleton had gone about that interaction and the way he had thrown the glasses towards him. Mr Scott told the Applicant he would have a talk to Mr Appleton and let him know that was not the best way to go about things.

Mr Scott’s evidence was that, in reply, the Applicant said that he was always covering for the supervisor’s or shielding the supervisor team. He says during this interaction the Applicant had raised his voice, was forceful with his language, and threw his arms around. The Applicant started to storm out of his office, but Mr Scott asked him to sit down, to listen and calm down. Mr Scot states he said to the Applicant.

“If you were wearing safety glasses in the first instance this wouldn’t have come about”.

Mr Scott says he later had a discussion with Mr Appleton and told him that he could have handled the situation with the Applicant better. Under cross-examination, he advised he made a diary note of the conversation.[3]

Considering all the evidence regarding the 25 March 2020 interaction between the Applicant and Mr Appleton, and considering some of the conflicts in the evidence, I find as follows.

It is a requirement of the Respondent that safety glasses be worn in the workshop at all times. On three occasions that day, Mr Appleton had seen the Applicant was not wearing safety glasses and each time had told him to put them on. On the last occasion, Mr Appleton threw a pair of safety glasses towards the Applicant, which was not appropriate behaviour. I do not accept that Mr Appleton swore at the Applicant. The Applicant complained to Mr Scott about Mr Appleton’s actions. Consequently, Mr Scott spoke to Mr Appleton and told him that how he had dealt with the Applicant’s repeated failure to observe the requirement to wear safety glasses was not the best way to deal with the problem and Mr Appleton had conceded he should have handled the problem differently.

It seems the Applicant ignores the fact that it was his repeated non-compliance with the Respondent’s safety requirements that was the trigger for the actions of Mr Appleton, about which the Applicant now complains.

The Applicant also fails to recognize that his repeated non-compliance with the Respondent’s safety requirements is problematic and this disregard for safety requirements is misconduct. This is compounded by him having accepted the elected role of safety and health representative.

The Applicant says that in July 2020, at a regular safety meeting with the management team, a team member made a racist comment about the Black Lives Matter protests. He says all attendees at that meeting were laughing and contributed with racist and insulting language. His evidence was that he spoke up about the comments made and stated that this was racism and in breach of the Respondent’s Code of Conduct. He says the whole room fell quiet and the meeting continued.

Mr Belling’s evidence includes a contemporaneous file note he made of a meeting with the Applicant on 19 July 2020, which is dealt with further below. These notes relevantly record that during his discussion with the Applicant, the Applicant mentioned a safety meeting on 17 July 2020 where he says he was shocked by the behaviour of the leadership attendees. Mr Belling’s notes record that the Applicant mentioned “Remarks – laughing - facial expressions and gestures - racial slurs against aboriginal team members”. Mr Belling’s notes record that the Applicant told him that he chose to speak up at the meeting.

Mr Scott’s evidence was that there was a meeting with safety representatives, including the Applicant, where while they were waiting for more people to arrive there was some talk about COVID-19 and people not following government directions to isolate. There was some discussion about a Black Lives Matter rally in Sydney and the comment was made jokingly that some people who would not normally protest were using the rally as an excuse to get out of lock down while the rest of the country were still wearing masks and following government directions. Everyone at the meeting other than the Applicant laughed.

Mr Scott’s evidence is that the Applicant then said something to the effect that he thought the discussion was inappropriate and accused the others of not supporting the Black Lives Matter movement.

Mr Scott’s evidence was that he recalls thinking that what the Applicant had said was strange and he did not believe what the Applicant was alleging was in line with what had been said. Mr Scott thinks this was a misunderstanding on the Applicant’s part. No one was disparaging or insulting the Black Lives Matter movement itself.

Mr Johnathon Owens’s (Mr Owens) evidence was that in early July 2020 he had asked Mr Scott to have someone speak to the Applicant after being informed by Mr Scott that another employee, Mr Hayden King (Mr King), had complained about the handover notes the Applicant was writing. Mr Scott had advised Mr Owens that some of the comments in the Applicant’s notes were patronising or rude and accused Mr King of not doing his job properly.

The Applicant’s evidence was that, around 19 July 2020, Mr Belling called him into his office. He informed him that Mr Scott had issues relating to his written handover notes left for his cross-shift. There was a pile of printed out handover sheets on Mr Belling’s desk, dating back to 2019. Mr Scott had highlighted some handover notes and made comments such as “not important, wrong forum, not relevant”.

The Applicant says he always sent a copy of the handover notes to his supervisor as well as his cross-shift’s supervisor and he had never received any complaints from the supervisors about these.

The Applicant’s evidence was that the situation with Mr Scott continuously criticizing him induced a great deal of frustration in him and so he reacted emotionally. Consequently, he used inappropriate and derogatory language in relation to Mr Scott when he responded to Mr Belling. He then told Mr Belling he would no longer accept the bullying and harassment and was going to lodge a complaint.

Mr Belling’s evidence was the background to this meeting was that the Applicant in the past had regularly complained to him that another employee, Mr King, was not a qualified fitter and said he wanted to see his trade papers. Every time the Applicant brought this up Mr Belling told him Mr King was qualified and it was not the Applicant’s responsibility to check his qualifications. The Applicant would respond that he still wanted to see his papers and he did not believe he was qualified because he was not doing the work properly. Mr Belling’s evidence in chief was that he did not have any concerns about the quality of Mr King’s work.

Mr Belling says that on 17 July 2020, Mr Scott told him that Mr King had complained about disrespectful comments the Applicant had left in the hand over notes that had offended him. Consequently, Mr Belling asked the Applicant into his office on 19 July 2020 to discuss this issue.

During that meeting, Mr Belling’s evidence was that he explained to the Applicant that Mr King had raised a concern with Mr Scott. He explained to the Applicant that the tone of his handover notes was not appropriate and told him that he could not make comments like that and that it was part of the Respondent’s Code of Conduct that the Applicant treat people with dignity and respect.

Mr Belling’s evidence in chief was that the Applicant in response raised his voice and aggressively said,

“Tim is not a man; he is a pussy for not approaching me”

“Tim’s background was fixed plant fitter and he stuffed that up so he was put into mobile”

“Tim is not a leader’s backside.”

The Applicant again also said he wanted to see Mr King’s qualifications. Mr Belling says he told him that he had to stop saying that because he was going to get himself into trouble.

Mr Belling made a diary note after the meeting that records these particular statements about Mr Scott that Mr Belling said were made by the Applicant.[4]

Under cross-examination, the Applicant’s evidence was that he did refer to Mr Scott as “a pussy”, but denies he said he “is not a man”. He denies he said that Mr Scott stuffed up his role as a fixed plant fitter. He agrees he mentioned that Mr Scott had behaved as a racist in a meeting. The Applicant also agrees that he did say Mr Scott is not a good leader. He agrees that he said that Mr Scott was not doing his job properly but denies that he said he “is not a leader’s backside”.

Considering the evidence of Mr Belling and the Applicant as to what the Applicant said at this meeting on 19 July 2020 and having reviewed the contemporaneous notes made by Mr Belling of the meeting, and noting the Applicant admits he spoke about Mr Scott in a derogatorily manner,[5] I prefer Mr Belling’s evidence as to specifically what was said.

Consequently, I find the Applicant did make the three particular statements about Mr Scott, set out above, which Mr Belling attributed to the Applicant. I also find that he spoke to Mr Belling angrily and in a raised voice.

There was no justification nor excuse for the Applicant’s behaviour in this conversation.

I find that the BHP’s Charter Values and Code of Conduct applied to the Applicant’s employment.[6]

The Applicant agrees he is familiar with BHP’s Charter Values and Code of Conduct and has been trained on these documents on a number of occasions. He agrees his conduct in the meeting on 19 July 2020 was a contravention of the Code of Conduct.[7]

Mr Owens’ evidence in chief is that on 21 July 2020 Mr Scott told him Mr Belling had addressed the issue of the handover notes with the Applicant, but the Applicant had blown up at him and become quite aggressive. Mr Scott also told Mr Owens that during the meeting the Applicant had apparently made a number of offensive and insulting comments about Mr Scott.

Mr Owens considered that the Applicant’s behaviour, if correctly reported, warranted an investigation as it may be inconsistent with the Respondent’s Charter Values and Code of Conduct.

He appointed Mr Roberto Kilian (Mr Kilian), Production Superintendent, to conduct the investigation. Normally Mr Scott would have been appointed but Mr Owens thought it was necessary to have someone independent of the issues conduct the investigation.

The Applicant’s evidence is that on 21 July 2020 he emailed Mr Owens and informed him that he was suffering from the ongoing situation of bullying and harassment and that it was affecting his health and well-being.

His evidence was that following this, on 30 July 2020, he met with Mr Owens and raised a number of issues, incidents, and complaints. He also expressed to him that he felt worthless and hopeless as he was constantly exposed to provocation, harassment, and bullying by maintenance management.

He says Mr Owens thanked him for finding the courage to come forward and said that he had reported some strong points and he would start an investigation into his complaints.

On 31 July 2020, there was another altercation between Mr Belling and the Applicant.

Mr Belling’s evidence was that on this day Mr Appleton approached him and told him that the Applicant was keeping his staff from their work and had not approached Mr Appleton for permission to speak to them away from their work. He was referring to Ms Kayla Murphy (Ms Murphy). Mr Appleton asked Mr Belling to speak to the Applicant and told Mr Belling that he had approached the Applicant before about this and he had become upset about it.

Mr Belling says the Applicant was in a workshop talking to Ms Murphy. Mr Belling appreciated that the Applicant was a safety representative and sometimes needed to talk to employees from other crews or teams. His evidence was the proper process would be for the Applicant to go to Mr Appleton and say that Ms Murphy had a safety concern and ask for Mr Appleton’s permission to speak to her. Mr Belling’s evidence was that contrary to this, the Applicant believed he could call other employees off the workshop floor at any time to talk to them.

Mr Belling says he walked through the workshop to where the Applicant and Ms Murphy were and said something like “Look you need to speak to the supervisor if you want to pull Kayla out or anybody else if you want to speak to them.”. Mr Belling says the Applicant raised his voice and responded, “I’m the safety rep so I don’t need permission” Mr Belling says he replied, “That’s neither here nor there, you still have to ask permission if you want to speak to people especially when they fall under a different teams supervisor.”

Mr Belling says the Applicant then approached him and came quite close in a threatening manner. He says the Applicant towered over him in height and he thought the Applicant was going to take a swing at him because he was that angry. Mr Belling said to him “Norbert I’m not comfortable with the way you approach me at the moment and I feel threatened”

He says he took a couple of steps backwards and he thought the Applicant realised what he had done, and he similarly stepped backwards. The Applicant then turned and stormed out of the workshop.

The evidence in chief of Ms Murphy is that on 30 July 2021 she approached the Applicant about a safety issue. He said he may be able to give her more information the following day. Her evidence was that on 31 July 2021 she noticed the Applicant as she walked past the workshop and approached him to ask about the issue. She and the Applicant were engaged in conversation when Mr Appleton entered the area. He left and then shortly afterwards Mr Belling approached the two of them. There was a work bench between them and Mr Belling.

She says Mr Belling advised them that they needed permission from Mr Appleton if they wanted to have a discussion. The Applicant responded asking why Mr Appleton did not tell them that when he was in the area. Mr Belling replied, “don’t shoot the messenger.”. She says the Applicant responded by saying that he was the safety rep and did not need to ask for permission to discuss anything related to his role.

She says the Applicant was clearly affected and wanted to be heard. Mr Belling replied to him saying “Now I’m starting to feel threatened” so the Applicant took a step back demonstrating it was not his intention to act in a threatening manner.

She says the Applicant said he had documents to prove it was acceptable in his role as a safety rep and he would provide Mr Belling with a copy. He turned around and left the area of the workshop.

Under cross-examination Ms Murphy agreed that the exchange between Mr Belling and the Applicant was heated. She agreed she made a written statement in early August 2020 wherein she had written that the Applicant got irritated during the course of the exchange and that he had raised his voice and that, in her words, the interaction made her feel “super uneasy”.

Ms Murphy also agreed that when interviewed about the incident by Mr Kilian she had told him that Mr Belling was very calm throughout the interaction. She agreed she had said that the Applicant was shouting. She had agreed that the Applicant’s conduct had been a breach of the Code of Conduct.

Her evidence was that the Applicant was on one side of the work bench and Mr Belling was on the other side. When asked why Mr Belling would have stepped back if there was a work bench between the two men her evidence was that he did this because it was getting really heated and Mr Belling just wanted to calm everything down, she repeated that there were raised voices.[8]

The Applicant says that on 31 July 2020 he approached Mr Owens in his office and reported the incident with Mr Belling. The Applicant says they decided together that he would fly out from site to avoid the situation escalating.

Mr Owens’s evidence is that on 31 July 2020 the Applicant saw him in his office and told him there had been a confrontation in the mobile maintenance workshop with Mr Belling

The Applicant gave no evidence about what occurred in this incident in his first witness statement.

In his reply witness statement, in response to the evidence in chief of Mr Belling, the Applicant simply denies Mr Belling’s version of events. His evidence was it was impossible for him to get close to Mr Belling because of the large and heavy work bench in between them.

Under cross-examination his evidence was that Mr Belling feeling threatened by him was more about him having raised his voice. The Applicant stated the volume of his voice is what was threatening to Mr Belling.[9]

He agrees Mr Belling said that he was feeling uncomfortable,[10] and he agrees at that point he stepped backwards.[11]

His evidence was that while the bench was between them, he may have leaned into the bench.[12] His evidence was that they were never however close.

Considering all the evidence of the three persons involved in this altercation I find as follows.

Mr Belling approached the Applicant to speak to him in a calm and nonconfrontational manner.

The Applicant however reacted to what Mr Belling said by angrily shouting and behaving aggressively towards Mr Belling. Mr Belling felt threatened by the Applicant’s behaviour. Ms Murphy felt extremely uneasy in the situation.

There was no justification nor excuse for the Applicant’s behaviour.

The Applicant, in his evidence, agreed that intimidation in the workplace is not appropriate and would be a breach of BHP’s Code of Conduct. He also agreed that shouting is not acceptable.

The Applicant agreed that his conduct on 31 July 2020 was a breach of BHP’s Code of Conduct.[13]

The Applicant’s evidence is that after this incident with Mr Belling he again approached Mr Owens and reported the incident. He says they decided together that the Applicant would fly off site to avoid the situation escalating further. His evidence was this was the last day that he worked on site before being stood down from his duties.

Mr Owens’s evidence confirms that the Applicant came to see him in his office on 31 July 2020 and he says the Applicant told him there had been a confrontation in the workshop between him and Mr Belling. He says the Applicant was visibly stressed and told him that he had “blown up” at Mr Belling. He told Mr Owens he thought Mr Appleton had told Mr Belling to bring this up with him and that Mr Appleton should have addressed the issue directly with him.

This was a Friday afternoon and Mr Owens was about to fly off site. He said to the Applicant that he was about to leave for the weekend and if the Applicant stayed on site over the weekend he would have to report to Mr Appleton and Mr Belling. Mr Owens said to him that he needed to know that the Applicant could do that, and that the situation was not going to escalate further.

Mr Owens says the Applicant responded, “I don’t know if I can do that”. Mr Owens says he then told the Applicant to go and have a coffee and sit down for an hour and come back and see him because if he cannot abide by the Charter Values and Code of Conduct for that period of time then he could remain on site.

Later, the Applicant came back to Mr Owens and told him that he did not think he could commit to abiding by the Code of Conduct if he stayed on site over the weekend. Mr Owen says he was concerned by this as it raised a real safety issue. His evidence was that the Applicant is a big guy and he thought things could escalate and he could not allow him to continue as there was a risk of something more serious happening.

Mr Owens’s evidence was that, when the Applicant told him that he did not think he could continue to work with Mr Appleton and Mr Belling over the weekend, he told the Applicant, “We can’t have you here this weekend then”. He says they agreed that the Applicant would fly off site that afternoon.

Mr Owens offered the Applicant support through the Respondent’s Employee Assistance Programme provider, but the Applicant told him he was already managing his issues with his personal doctors and did not need any support from BHP.

The evidence is that Mr Kilian commenced interviewing witnesses in relation to allegations against the Applicant around 1 August 2020. His investigation concerned the Applicant’s conduct on 19 and 31 July 2020 involving Mr Belling. He provided Mr Owens with copies of his interview notes and the written statements that witnesses had provided.[14]

Mr Owens’s evidence was that he was concerned by the witness statements particularly the allegations that the Applicant had been aggressive and threatening in the final incident with Mr Belling. He was worried that if a further incident like this occurred it might escalate into physical violence, and he decided it was necessary to stand the Applicant aside to allow the investigation by Mr Kilian to conclude. This decision Mr Owens says was based on safety concerns about the risks to the Applicant and other employees if another incident occurred.

On 11 August 2020 Mr Kilian sent the Applicant a letter notifying him he was being stood aside on pay pending the outcome of investigations into his behaviour, specifically, during the meeting with Mr Belling on 19 July 2020 and the second meeting on 31 July 2020.

The same day the Applicant sent Mr Owens, by email, a medical certificate which was dated 6 August 2020 that said he was unfit for work from 1 August to 4 August 2020. No reason was specified.

Mr Kilian met with the Applicant and his support person, one of the Respondent’s apprentices Ms Molly Gordon (Ms Gordon), on 12 August 2020 to allow the Applicant to provide his version of events.

The Applicant was advised that the outcome of the investigation might include disciplinary action including termination of his employment.

Mr Kilian’s evidence is that the Applicant persisted in saying that he had brought up complaints himself against other employees he believes should be finalised before Mr Kilian’s investigation. Mr Kilian was not aware of these complaints did not know what they were, and the Applicant did not disclose them during this interview.

During the interview the Applicant said he had received legal advice not to answer Mr Kilian’s questions.

In the interview, the Applicant or Ms Gordon requested a break after 15 or 20 minutes.

After the break, the interview continued, Mr Kilian says the Applicant opened up a bit more and admitted to each of the allegations but was explaining that he was provoked. He admitted to raising his voice and using inappropriate language. He admitted that his behaviour was out of line with BHP’s Charter Values and Code of Conduct.

Towards the end of the interview Mr Kilian says the Applicant again said that the other employees against whom he had made complaints should be stood aside until those investigations were finalised.

Mr Kilian’s evidence in chief was that having spoken to the relevant witnesses, and the Applicant, he considered the allegations had been substantiated and that the Applicant’s conduct was a serious breach of BHP’s Charter Values and Code of Conduct. The incidents demonstrated a pattern of behaviour. He considered the Applicant was at risk of engaging in the same behaviour again which posed a risk to other employees’ safety and well-being if he could not control himself.

On 26 August 2020, Mr Kilian spoke on the phone to the Applicant to invite him to a show cause meeting to discuss the outcome of Mr Kilian’s investigation. This meeting was originally to be held on Friday, 28 August 2020. This was confirmed to the Applicant in writing, by email, on 27 August 2020. This email included the outcome of Mr Kilian’s investigations.[15]

However, on 27 August 2020, before the show cause meeting had taken place, the Applicant sent the Respondent a medical certificate dated the same day which stated he was receiving medical treatment from 27 August 2020 to 28 August 2020 inclusive. The document stated he was unfit for work and to attend “work-related meetings”.

On 29 August 2020, the Applicant provided a third medical certificate saying he was unfit for work from 28 August to 9 September 2020 and was also unable to attend any work-related meetings.

The Applicant then commenced an extended period of both paid and unpaid personal leave pursuant to further medical certificates he provided.

The Applicant says that on 17 September 2020 he received an email from Mr Owens informing him that a fitness for work appointment had been scheduled for him to attend on 7 October 2020 with OSHGroup.

On 7 October 2020 the Applicant attended a fitness for work assessment with Dr Edward Petch (Dr Petch), Forensic Psychiatrist, from OSHGroup.

Dr Petch is a Forensic Psychiatrist with tertiary qualifications in medicine, neuroanatomy, psychiatry, forensic psychiatry and criminology. Dr Petch is engaged by OSHGroup as a consultant on a part-time basis.

Through contact with the OSH group, and BHP’s staff, the Applicant attempted to obtain a full copy of Dr Petch’s report.[16]

He was advised that the report was provided only to BHP.

During this time, the Applicant made a workers compensation claim.

Mr Petch’s report detailed the Applicant’s past psychiatric history which dates back to 2012 and concluded, amongst many other things, that the Applicant was suffering from a severe depressive episode with ongoing suicidal features. The Applicant’s ongoing perception of bullying and harassment in the workplace would be likely to exacerbate his condition and therefore he is not fit to return to work.[17]

The Dr Petch’s conclusion was that overall engagement in the investigation process was not conducive to the Applicant’s recovery.

The report indicated that the Applicant should be reassessed in two to three months as to his fitness to participate in the investigation.

The evidence is that Ms Karen McGrath (Ms McGrath), from BHP’s medical team, discussed Dr Petch’s report with the Applicant who advised her that he was continuing to progress with his treatment through his general practitioner and private psychologist.

On 13 January 2021, Mr Owens wrote to the Applicant to again advise him of the outcome of the investigation by Mr Kilian and asked him to show cause as to why his employment should not be terminated (First Show Cause Letter).[18]

By email, the next day 14 January 2021, the Applicant responded to Mr Owens advising that, on the basis of medical advice he had received about the level of engagement he should have with the Respondent, he would not be responding to the First Show Cause Letter.

The Applicant in his response made various other demands regarding the investigation into early complaints he had made and, separately, regarding the Respondent’s fair treatment policy. The Applicant also requested further time to respond.

Whilst not agreeing with the Applicant’s concerns, Mr Owens subsequently agreed to extend the time period for him to respond.

The Applicant advised he was in medical appointments on 19 and 22 January 2021 and so Mr Owens put the show cause process on hold.

On 22 January 2021 the Applicant forwarded a medical certificate to Mr Owens. The medical certificate was from the Applicant’s general practitioner, stating he had seen the Applicant that day and, amongst other things, stated that recent communications with work had caused the Applicant significant distress, affecting his mental health and so the general practitioner had recommended the Applicant reduce communications with work for the time being or to limit this as the Applicant sees fit.

That same day, the Applicant provided a WorkCover progress certificate of capacity completed by the same general practitioner regarding an assessment of the Applicant undertaken on that day. This assessment said he had some capacity to work through to 26 February 2021, performing modified or alternative duties, eight hours a day, four days per week.

Mr Owens felt the medical information being provided was contradictory and opted to obtain independent medical advice again referring the Applicant for a second fitness for work assessment with Dr Petch.

By email, on 27 January 2021, Mr Owens explained to the Applicant that the nature and prognosis of his ongoing capacity was unclear and so a follow-up assessment with Dr Petch had been arranged for 24 February 2021. His email explained that the purpose of this “is to understand the nature and prognosis of your current fitness to participate in the show cause process and communicate with the company in relation to work- relate matters.” (sic)

The email went on to remind the Applicant that, as part of his employment, he may be required to attend and participate in any medical assessments considered appropriate. This attendance is to ensure he is fit for work or to understand his ability to participate in work-related activities. It explained that failure to meet this requirement of his employment contract may result in disciplinary action up to and including termination of employment.

The email confirmed that Mr Owens would continue to pause the show cause process until further medical advice is received regarding the Applicant’s capacity to engage in work-related activities.

In reply, on the same day by email, the Applicant told Mr Owens he would attend the appointment with Dr Petch conditional upon he, his general practitioner, and his psychologist receiving full and unredacted copies of Dr Petch’s reports both from this attendance and his prior attendance in October 2020.

Mr Owens replied advising the Applicant that the direction to attend the assessment was a lawful and reasonable one and BHP were not required to meet the conditions his set.

Subsequently, the Applicant attended a consultation with Dr Petch on 24 February 2021.

Dr Petch’s evidence is that he first met the Applicant when he attended the appointment on 7 October 2020. On that occasion he says it took a long time for the Applicant to agree to participate because he was concerned about confidentiality and Dr Petch’s independence. Ultimately, the Applicant agreed to participate. A report of his examination, dated 13 October 2020, was provided to BHP.

On 24 February 2021 the Applicant attended another appointment with Dr Petch. At this appointment the Applicant was accompanied by his daughter. The Applicant had not signed the required consent form. He told Dr Petch that the Chief Operating Officer of OSHGroup had previously been employed by BHP, a fact Dr Petch was unaware of.

The Applicant told Dr Petch that he had taken this matter to the Australian Commission for Freedom of Information and that the Applicant did not think that the assessment by Dr Petch could be totally independent under the circumstances.

Dr Petch says that he explained that he did not think there was a conflict of interest because of this. He advised the Applicant he had not had any discussions with the Chief Operating Officer about the Applicant’s case.

The Applicant also explained to Mr Petch that it was his understanding that he was likely to have his employment terminated if he did not consent to the evaluation and so he felt he was being coerced.

They had a long discussion about whether the Applicant would consent to being assessed. Dr Petch’s opinion was that the Applicant was coherent and able to clearly put forward his point of view and was satisfied that he had the capacity to give consent.

The Applicant refused to consent to the assessment so the medical assessment could not proceed.

That same day, 24 February 2021, Mr Owens was advised by Ms McGrath that the Applicant had refused to consent to the assessment. She informed him that one of the issues the Applicant had raised was that he had only received a redacted copy of Dr Petch’s first report from October 2020. Mr Owens was concerned that this issue was an impediment that could easily be removed. Mr Owens subsequently decided to provide the Applicant with the unredacted copy of Dr Petch’s original report, even though this was not BHP’s usual practice.

On 16 April 2021 Mr Owens sent the Applicant another email directing him to attend an appointment with Dr Petch again for a medical assessment on 28 April 2021.

In response, the Applicant said he required copies of reports or correspondence from his appointment with Dr Petch on 24 February 2021 sent to BHP and copies of any further reports about his health condition as they become available.

On 20 April 2021 Mr Owens replied to the Applicant enclosing copies of correspondence from Dr Petch dated 4 March 2021 which related to his appointment on 24 February 2021. Copies of previous correspondence from Dr Petch dated 2 November 2020 and 7 December 2020 which were supplementary reports relating to advice sought on communicating the outcome of the investigations into the Applicant’s own complaints about other employees, including whether this communication with him should occur face-to-face or in writing. Mr Owens also confirmed to the Applicant that BHP will provide him with a copy of the report received from Dr Petch following his assessment with him on 28 April 2021.[19]

Dr Petch’s evidence was that on 28 April 2021 the Applicant again attended for an assessment accompanied by his daughter.

Dr Petch’s evidence was that this appointment was much shorter. The Applicant told him the situation was the same. The Applicant told Dr Petch he had received the unredacted version of his October 2020 report. Dr Petch says the Applicant said that nothing which had been redacted was of particular relevance and so he did not understand why it had been redacted in the first place. Dr Petch explained that this was nothing to do with him.

The Applicant repeated his previous distrust of OSHGroup for the reasons he had explained in the previous appointment. Dr Petch responded, with the same as previously, that the OSHGroup’s Chief Operating Officer’s involvement with the business did not, in his view, constitute any conflict-of-interest for Dr Petch undertaking an independent assessment of the Applicant.

The Applicant brought up the fact that another doctor at OSHGroup was involved in his workers compensation claim. Dr Petch explained to the Applicant the that he had no contact with that doctor and had not seen any reports regarding his workers compensation claim. Dr Petch explained that he worked independently of that other doctor and any views they might hold would not influence Dr Petch’s assessment. He also repeated the comments he had made to the Applicant at their prior appointment that Dr Petch’s report would not be used in connection with the Applicant’s workers compensation claim.

Ultimately, the Applicant advised the doctor that he again declined to give his consent to be assessed. Consequently, Dr Petch was unable to assess the Applicant’s fitness to participate in the show cause process and so was unable to advise the Respondent on this question.

Under cross examination, the Applicant unequivocally stated that that he never questioned Dr Petch’s independence.[20]

On 10 May 2021 the Applicant sent an email to Mr Owens. In the email, the Applicant said that Dr Petch told him he would recommend the Respondent use a different service provider to provide a further assessment. The evidence of Dr Petch was that he did not agree there was any basis for the Applicant to decline assessment by himself, but he did propose this alternative as an option to overcome the Applicant’s refusal to provide consent to be assessed.[21]

The Applicant, in his email to Mr Owens, also explained that he had met with his psychologist, and they are of the opinion that it is crucial for his well-being that he obtain clarity regarding the future of his employment.

The Applicant’s email then said he was therefore asking for the show cause meeting to be scheduled as soon as possible. He said he would have a support person with him and requested this meeting take place face-to-face and that the Applicant be informed of whom will be present.[22]

Consequently, on 17 May 2021, the Respondent issued the Applicant with a letter. This letter asked him to show cause as to why his employment should not be terminated in light of both the findings of the investigation as well as the refusal to participate in the medical assessment (Second Show Cause Letter).

The Second Show Cause Letter detailed the original three allegations that had been previously put to the Applicant in the First Show Cause Letter. In the Second Show Cause Letter the Respondent again explained that the investigation into these allegations had concluded that they were substantiated. The allegations are set out below.

“Allegation 1: On Sunday 19 July 2020 at about 9.00am during a meeting with you supervisor, you have demonstrated inappropriate and aggressive behaviour.
Allegation 2: During the meeting on 19 July 2020, you have made inappropriate, derogatory comments in relation to your superintendent and the Cliff's leadership team.
Allegation 3: On 31 July 2020, you have demonstrated inappropriate behaviour towards a colleague that was perceived as intimidating.”

The letter continued to detail the history of the Respondent’s directions to the Applicant to attend assessments by Dr Petch and his multiple refusals to consent to the doctor conducting the assessments. The Respondent, in this letter, said that he had not provided a reasonable explanation for his failure to participate in the most recent assessment with Dr Petch on 28 April 2021. In the absence of an acceptable explanation the letter said the Applicant’s conduct breached his obligations to the company under his employment contract, that he would comply with any lawful and reasonable direction given.

The letter explained that consequently, in addition to the three original allegations, his refusal to consent to the assessment by Dr Petch on 28 April 2021 now also forms a reason why the Respondent was considering terminating his employment.

Mr Owens’s letter invited the Applicant to provide a response to the Second Show Cause Letter.

Mr Owens’s evidence was he did not think was a good idea to meet face-to-face with the Applicant. He was worried about the risk of being in the same room as the Applicant when delivering the news that they were considering terminating his employment. Also, he was mindful that previously the Applicant had requested communications be in writing. He thought it was best to send it to him in writing and give him a few days to consider his options and allow him to provide a written response.

On 19 May 2021 the Applicant replied to Mr Owens’s email raising a number of complaints such as their unwillingness to participate in a face-to-face meeting. He also stated that it was essential that the fair treatment review he had requested be finalised before a decision is made regarding terminating his employment.

The reference to the fair treatment review concerns a request for a review of findings from an investigation into the various complaints the Applicant had made to Mr Owens in July 2020. Mr Owens initially investigated these complaints, but the response was not immediately provided to the Applicant due to his general practitioner advising he was unable to participate in work meetings.

On 20 November 2020 Mr Owens had emailed the Applicant to advise he had completed the investigations into his complaints and offered to meet in person with him or to send him a copy of his findings. A week later, the Applicant sent a text message saying he would like the findings and report emailed to him. Ultimately, the Applicant contested Mr Owens’s conclusions on these matters and initiated two separate fair treatment reviews of these conclusions.

Mr Owens, with respect to the show cause process, advised the Applicant that the fair treatment reviews he was pursuing, which were being undertaken by other people in BHP, were entirely separate from the findings that had been made against him regarding the three allegations detailed in the First Show Cause Letter and the Respondent’s complaint about his refusal to consent to the assessment by Dr Petch contained in the Second Show Cause Letter.

On 24 May 2021, the Applicant provided his four-page written response to the Second Show Cause Letter.

In his response, the Applicant criticises Mr Kilian and characterises him as being overwhelmed and out of his depth. He says the Respondent has failed to acknowledge that he self-reported the original three allegations before a complaint was made against him. Without explanation, he says false and misleading statements have been included in the Respondent’s findings.

The Applicant’s letter says that he was suffering from a mental health condition which exacerbated his reactions and behaviours.

The Applicant’s letter says that it is clear the outcome of the investigation was predetermined.

The Applicant says there was favourable treatment to other employees who breach company policy.

He says the Respondent’s management and supervisors failed to recognise and take action to address his possible mental health concerns.

Specifically in response to allegation one, relevantly, the Applicant says he did offer a valid reason for his behaviour, which was his compromised mental health condition at the time.

In response to allegation two, the Applicant entirely denies making any inappropriate or derogatory comments in regard to the Respondent’s leadership.

In response to allegation three, the Applicant said he was acting within his role as a safety representative. He denies advancing towards Mr Belling in a threatening manner. He says he self-reported the incident following the conversation with Mr Belling and apologised to Mr Belling and Mr Appleton about his behaviour.

A range of other criticisms and complaints about the Respondent are included in the Applicant’s response.

Mr Owens’s evidence was that having considered the Applicant’s email response, his thoughts were that he placed huge emphasis on a number of minor things he perceived as procedural failures rather than addressing his behaviour and indicating his remorse and contrition.

Mr Owens noted that, on the one hand, the Applicant admitted he engaged in the alleged misconduct during the three incidents by saying he had self-reported each of these and that he had apologised to Mr Belling and Mr Appleton, but on the other hand, he alleged the allegations contained false and misleading statements and lacked any credibility.

Mr Owens also noted that the Applicant complains he was not provided any meaningful support for his mental health when he had in fact refused Mr Owens offer of support in favour of using his general practitioner and private psychologist.

Mr Owens’s view was that the Applicant continued to not accept he had behaved inappropriately and continued to shift the blame onto others. He felt the Applicant lacked insight into the seriousness of his behaviour and the impact it had had on his co-workers.

Mr Owens’s view was that nothing in the Applicant’s response caused him to reconsider the likely outcome and he decided that termination would be appropriate. The Applicant had committed multiple serious breaches of the Respondent’s Charter Values and Code of Conduct. Mr Owens was worried that if the Applicant returned to work he would have to work alongside people like Mr Appleton and Mr Belling and there appeared to be a real risk that things would escalate if the Applicant could not control his behaviour. Mr Owens consequently decided to terminate the Applicant’s employment.

On 26 May 2021, after considering the show cause response, the Respondent decided to terminate the Applicant’s employment. The Applicant was provided with a letter of termination later that day and was paid 5 weeks’ pay in lieu of notice.

The letter of termination states that the original three allegations, concerning his aggressive behaviour on 19 July 2020,[23] making inappropriate and derogatory comments in relation to his superintendent and the leadership team also on 19 July 2020, and his inappropriate behaviour towards a colleague that was perceived as intimidating on 31 July 2020, had all been substantiated. Finally, the termination stated that allegation four had also been substantiated. The letter stated that he had failed to follow the lawful and reasonable direction of the Respondent to participate in an assessment by Dr Petch on 28 April 2021.

In response to evidence of the Applicant and his submission that his dismissal was predetermined because his position had been filled before his employment ended, Mr Owens’s evidence was that after the Applicant left site in July 2020, they engaged contractors to perform his role. After the Applicant had not returned to site for approximately six months Mr Scott told Mr Owens that they really needed to employ someone to fill the role because of the cost of using contractors and because they did not know when he would be returning to site. Mr Owens consequently agreed, and Mr Scott arranged for the role to be advertised in or around January 2021.

An existing contractor on-site was appointed to the role with BHP in early April 2021.

Mr Owens’s evidence is that this did not mean BHP had pre-judged the outcome of the Applicant’s disciplinary process. They just did not know when, if ever, the Applicant would be fit to return to work. If the Applicant had not been dismissed and he was cleared as fit to return to work BHP would have absorbed that position into the organisation structure such as by the place displacing other contractors or redistributing work and other teams. Filling the Applicant’s role as they did would not have prevented the Applicant from coming back to site.

The Applicant’s submissions

In summary, the Applicant submits the following.

The dismissal was unfair because there was no valid reason for the termination. At the time of the allegations, the Applicant was suffering from a mental health condition. Numerous reports from medical experts supported this fact. The Applicant’s mental illness caused him to act in the manner described in the allegations. Therefore, there was no valid reason for the termination of the Applicant’s employment.

The Applicant communicated his difficulties to the Respondent, in an email dated 21 July 2020, and informed them that the situation was affecting his health and wellbeing. No meaningful support was offered to the Applicant nor were any reasonable adjustments made.

Failure by management to provide him with any notice of meetings and the topics to be discussed was a key reason for his reaction in the allegations. Considering their knowledge of the Applicant’s compromised mental health at the time, it would have been the appropriate process to address any work-related issues.

The Applicant submits that if the Respondent was genuinely concerned about what had occurred on 19 July 2020 it would not have waited 12 days before lodging a complaint against the Applicant. The Applicant submits he was not notified of this allegation until 12 August 2020.

The Applicant submits that the fact that the Respondent did not accept and record the Applicant’s initial response to the allegations at the disciplinary interview constitutes procedural unfairness. Therefore, the Applicant submits it cannot be said that the reason is sound, defensible, or well-founded.

Regarding the allegation of failing to follow the lawful and reasonable direction of the Respondent to participate in a fitness for work assessment with Dr Petch on 28 April 2021, the Applicant makes the following submissions.

The Applicant says the company failed to follow the recommendation and instructions of Dr Petch to seek a different service provider. Under the circumstances of being in conflict with OSHGroup, the Applicant submits it was not unreasonable to withhold consent. Had the company followed Dr Petch’s instruction to seek assistance from a different service provider, the Applicant says he would have had no objection to signing the consent form.

The Applicant submits that the fact that he instructed the Company by email, on 10 May 2021, to go ahead with the show cause meeting, despite not being medically cleared to do so, eliminated the requirement for the medical assessment and thus rendered it irrelevant. Failure to follow a lawful and reasonable direction was therefore no longer a valid reason for dismissal.

The Applicant submits that the extent of the content of the fitness for work assessment was unjustifiably excessive and unnecessary.

In relation to section 387(c) of the Act, the Applicant submits that he was not given an opportunity to provide a statement of his version of events in the complaint against him. The Applicant states he was therefore denied an opportunity to respond to the allegations in his own words.

The Applicant’s initial response, to the allegations against him at the disciplinary interview held on 12 August 2020, was that his behaviour was a direct consequence of the complaints which he had made regarding the mistreatment he experienced in the workplace causing his mental illness. The Applicant submits that this was the first time he was given an opportunity to respond to the allegations against him. The fact that his mental health condition was a contributing factor in his behaviour was not accepted, nor was it at all included in the findings of the disciplinary meeting. The Applicant submits he was therefore not given a genuine opportunity to respond to the allegations against him.

The Applicant states none of his responses, concerns, or questions in the show cause letter were addressed, acknowledged, or responded to in any form, other than to say his response has been “carefully considered”. This leads the Applicant to conclude that the decision makers were simply going through the motions.

In relation to section 387(e) of the Act, the Applicant submits that it is apparent in the Respondent’s findings of the investigation, in the letter dated 13 January 2021, and the termination of employment letter, dated 26 May 2021, that allegations from his past performance were taken into consideration in coming to a decision. The Applicant states he was never notified of any previous unsatisfactory performance, nor was he given any warnings related to performance or conduct.

The Applicant submits he was never given an opportunity to respond to the allegations before the findings were provided to him. The Applicant strongly denies all of those allegations.

In relation to section 387(h), the Applicant submits that the Respondent failed to give any consideration to the fact that he was suffering from a mental health condition at the time of the alleged misconduct.

The Applicant submits the Respondent failed in upholding their legal obligations in relation to the management of mental illness in the workplace.

The Applicant further states management failed in their responsibility to assist workers with mental illness by implementing changes and making reasonable adjustments which would enable workers to perform their duties more effectively, as per the Australian Human Rights Commission: 2010 Workers with Mental Illness: a Practical Guide for Managers.[24]

Despite the fact that the progress certificate dated 23 October 2020 stated that the Applicant had some capacity to return to work, no attempts were made by the employer to initiate a return-to-work program. This led the Applicant to believe that there was no intention from the employer to have him back in the workplace.

The Applicant submits that the outcome of the investigation was premeditated for the following reasons.

The Applicant’s position was advertised on LinkedIn in or around January 2021. The position was subsequently filled as a permanent position by Andrew Fudge in or around April 2021.

The Applicant was not presented with the findings of his complaint, lodged on 30 July 2020, until 8th December 2020. However, the outcome of the investigation into the complaints against the Applicant, lodged on 31 July 2020, were finalised and communicated to him on 25 August 2020. In these findings, the Respondent’s position was to terminate his employment. This situation leads the Applicant to believe that the company believed his termination would eliminate the need to deal with the allegations lodged by him.

The Applicant submits the Respondent’s decision to terminate his employment was based on serious breaches of the Charter Values and Code of Conduct which would ordinarily result in summary dismissal. However, he was terminated with five weeks’ pay in lieu of notice. This leads the Applicant to believe that the Respondent’s intention was to attempt to reduce the risks of facing an unfair dismissal claim.

The fair treatment review which the Applicant requested, following the release of the findings into my complaint against management, was not conducted in line with the Respondent’s fair treatment review process. The Applicant submits that failure to apply the proper process constituted significant procedural unfairness towards him. This further underlies his suspicion that the termination was premeditated, as the company was successfully able to avoid applying equal disciplinary action.

The Applicant states it is indisputable that differential treatment had been applied in regard to consequences for employees committing similar breaches of the Code of Conduct. While the Applicant had been stood down from work immediately, pending investigation, other employees contravening company policies were not. These breaches were reported in the complaints the Applicant lodged. Therefore, the Applicant states a “fair go all round” was denied to him.

The Applicant states the decision to terminate his employment is harsh in terms of its economic impact.

The Applicant submits that the Respondent failed to take into consideration his personal circumstances. The Applicant states the termination has significantly impacted on his financial commitments and forced him to have to access his savings to meet my financial obligations. The Applicant states that he is 53 years of age and is renting his home.

The Applicant submits that the allegations do not proportionately justify the consequence of the termination of his employment. The Applicant submits that, the fact that he self-reported all the incidents in the allegations and apologised to the parties involved should be given heavier consideration in determining the appropriate disciplinary outcome. The Applicant states that termination should be reserved as a final measure. Given these circumstances, the Applicant considers the termination is harsh and unreasonable.

The Respondent’s Submission

The Respondent submits that, in this case, there is a sound evidentiary basis to be satisfied the Applicant:

“a. behaved in a disrespectful and aggressive manner toward his Supervisor, and made offensive and derogatory comments about his 2-up Supervisor, on 19 July 2020; and
b. behaved in a disrespectful and intimidating manner toward his Supervisor on 31 July 2020; and

c. unreasonably failed to comply with a lawful and reasonable direction when he failed to participate in the medical assessments of 24 February and 28 April 2021. “

The Respondent submits the Applicant’s behaviour, referred to above, amounted to valid reasons for the termination of his employment.

The Respondent submits the Applicant’s behaviour on 19 and 31 July 2020 in and of itself provided the Respondent with a valid reason for termination. The Applicant’s behaviour on those dates caused his colleagues real distress, demonstrated an alarming disregard for the most basic standards of workplace behaviour, and was in clear violation of the Respondent’s well-established policies. The Respondent states these are policies of which the Applicant was well aware of and on which the Applicant had received regular training. Notably, the Respondent highlights, a failure to comply with an employer’s policies will, particularly when substantial and wilful, almost invariably ground a valid reason for dismissal.

Further, the Respondent submits, a direction to attend a medical assessment will generally be considered a lawful and reasonable one and an employer’s right to require participation in a medical assessment is accompanied by a right to choose the medical practitioner who will provide the report.

The Respondent submits an employee is not entitled to stipulate the terms on which they will agree to attend an independent medical assessment, and a direction will not be considered unreasonable solely by reason of it being a non-preferred option of the employee. An employee raising a complaint about the medical assessment process, including in relation to concerns they may have around providing consent for the assessment to occur, is not sufficient cause for them to refuse to attend a medical assessment, even where the complaint remains unresolved.

The Respondent states it had a genuine interest in whether or not the Applicant had the capacity to participate in a show cause process. The Respondent submits the directions that the Applicant attend an independent medical assessment were, in all the circumstances, reasonable. The concerns raised by the Applicant relating to perceived conflicts of interest and the dispute he had instigated with OSHGroup did not form an objectively reasonable basis for his refusal. The Respondent submits that the Applicant, having not made out a proper basis for failing to comply with those directions, made his refusal a further valid reason for dismissal.

Considering the Applicant’s conduct on 19 and 31 July 2020 and the Applicant’s subsequent and persistent refusal to comply with a lawful and reasonable direction, the Respondent states it was clear there existed a valid reason for the termination of the Applicant’s employment.

In relation to procedural fairness and section 387(b) and (c) of the Act the Respondent submits the following. The Applicant was plainly notified of the reasons for which the Respondent was considering terminating his employment, through the First and Second Show Cause Letters. In particular, the Second Show Cause Letter put the Applicant on notice of all of the reasons the Respondent subsequently relied on when deciding to terminate the Applicant’s employment.

The Applicant had an opportunity to respond to the reasons notified in the Second Show Cause Letter, and indeed did so when he provided his Show Cause Response.

The Respondent submits it had regard to all matters raised by the Applicant in the Show Cause Response.

The Respondent submits the Applicant was not dismissed for unsatisfactory performance.

Although the Termination Letter refers to the Applicant’s “past performance” and “performance history”, the Respondent submits these were neutral considerations in the Respondent’s decision. The Respondent states the Applicant’s dismissal did not relate to unsatisfactory performance. as contemplated by section 387(e) of the Act.

The Respondent submits the Applicant’s relatively short length of service means that no particular leniency is warranted nor appropriate in the present case.

The Respondent submits that the Applicant’s continued failure to take responsibility for his conduct and the consequences it has had for those subjected to it weighs strongly against a finding that the dismissal was unfair.

The Applicant’s personal circumstances are not remarkable, the Respondent submits that termination of employment will invariably occasion a degree of hardship on the employee who engages in misconduct, and an employer's decision to hold an individual accountable for his or her behaviour does not become unfair or harsh simply because the consequences are serious.

Further, the Respondent states the Applicant’s claims of differential treatment are without evidentiary foundation, and in any event, the Respondent highlights the Commission has repeatedly stressed that such claims must be approached with caution, taking care to ensure that cases advanced as comparators are, in fact, such, the Commission must ensure it is comparing “apples with apples”.

The Applicant’s mental health condition is, in the Respondent’s submission, not relevant to an assessment of the harshness of his dismissal. Particularly in circumstances where there is no evidentiary foundation for a finding that his condition was caused by the Respondent or otherwise prevented the Applicant from demonstrating even the most basic standards of professionalism during the incidents of 19 and 31 July 2020, and throughout the protracted period in which the Applicant resisted the Respondent’s direction.

Similarly, the Applicant’s claim that the outcome of the disciplinary process was premeditated is an assertion without credible foundation and is adamantly denied by the Respondent.

The Respondent submits the evidence discloses that the Respondent provided extensive accommodations to the Applicant, beyond what an employer is reasonably required to provide, in the form of a prolonged period of paid and the unpaid leave, in an attempt to provide the Applicant with an opportunity to regain fitness for work and return to the workplace. The Respondent also paused or postponed the investigation and disciplinary processes in relation to the Applicant’s conduct on multiple occasions and for prolonged periods, at the Applicant’s request. The Respondent submits such accommodations tend against a finding that the dismissal was unfair.

The Respondent submits that in this case, termination of employment was an entirely reasonable, and indeed the most appropriate, response to circumstances where the Applicant subjected his colleagues to unacceptable hostility, exhibited a disdain for management, and demonstrated a persistent disregard for the reasonable directions issued to him by the Respondent.

The onus of establishing that the dismissal was harsh, unjust or unreasonable rests on the Applicant. In light of the considerations set out above, the Respondent submits the Applicant has failed to discharge that onus, and the Application ought to be dismissed.

Consideration

Section 387 of the Act sets out the criteria the Commission must take into account when considering whether the Applicant’s dismissal was harsh, unjust or unreasonable. This is set out below.

“387      Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.”

Valid reason

The evidence is that, on 19 July 2020, the Applicant spoke to his immediate supervisor Mr Belling angrily and in a raised voice. Additionally, the Applicant made the following statements about Mr Scott, to whom Mr Belling reports,

“Tim is not a man; he is a pussy for not approaching me”

“Tim’s background was fixed plant fitter and he stuffed that up so he was put into mobile”

“Tim is not a leader’s backside.”

The evidence is that on 31 July 2020 the Applicant reacted angrily when Mr Belling was speaking to him and was shouting and behaving aggressively towards Mr Belling. Mr Belling felt threatened by the Applicant’s behaviour. Ms Mason, who was also present, felt extremely uneasy in the situation.

Finally, the evidence is that on 16 April 2021 the Respondent, by email, directed the Applicant to attend a medical assessment to be conducted on 28 April 2021. On 28 April 2021 the Applicant presented before Dr Petch who was to undertake the assessment. The Applicant however declined to consent to that assessment. Consequently, Dr Petch was unable to undertake the medical assessment. In refusing to consent to that medical assessment the Applicant refused to comply with a lawful and reasonable direction of his employer.

The Applicant’s behaviour towards Mr Belling and his statements about Mr Scott on 19 July 2020 were each misconduct. His behaviour towards Mr Belling on 31 July 2020 was misconduct. The Applicant’s refusal to consent to be examined by Dr Petch on 28 April 2021 was misconduct.

Individually, each of these acts of misconduct was a valid reason for the Applicant’s dismissal.

The Applicant argues that his poor state of mental health at the time he committed misconduct on 19 July and 31 July 2020 both explain and should excuse his behaviour on these two occasions.[25]

There is evidence before the Commission that for some years the Applicant has unfortunately suffered from mental health difficulties including depression and anxiety.

What evidence there is regarding the Applicant’s mental illness and how that might affect his behaviour in the workplace is limited. This evidence is also based upon the Applicants self-reporting to the respective health professionals as to what has occurred in the workplace in the past. The Applicant’s health professionals did not give evidence and so were not subject to cross examination.[26]

In this case, what evidence there is about the Applicant’s mental health does not satisfy the Commission that this was the cause of his particular behaviour on 19 July 2020 and 31 July 2020. What occurred on those days were normal common place discussions that supervisors have with employees from time to time. The manner in which the Applicant responded cannot be accepted nor excused. The evidence does not show that the Applicant was being harassed or bullied at all.

There is no suggestion that the Applicant’s mental health was a factor in his decision to withhold his consent to be examined by Dr Petch on 28 April 2021.

Notification of that reason

The Applicant was notified of the reasons why the Respondent was considering dismissing him in the Second Show Cause Letter.

Opportunity to respond

The Second Show Cause Letter invited the applicant to provide a written response which he subsequently did.

Refusal of support person

There was no refusal by the Respondent to allow a support person to attend any discussions regarding his dismissal.

Warnings about unsatisfactory performance

Warnings are not relevant in this case because the Applicant was not dismissed for unsatisfactory performance but rather because of misconduct.

Size of the employer’s enterprise

The Respondent is a large employer and as a consequence the procedures followed in effecting the Applicant's dismissal were appropriate.

Absence of Human Resource Management Specialists

The Respondent does have Human Resource Management specialists and the procedures followed in effecting the Applicant's dismissal reflected this available expertise.

Other relevant matters

The Applicant’s period employment was relatively short.

The Applicant’s complaints that were investigated by the Respondent were properly dealt with by Mr Owens. The Applicant’s demand that he be advised of what disciplinary sanctions other employees received is inappropriate.[27]

The evidence, with respect to the Applicant not complying with the Respondent’s direction for him to undergo a medical assessment, is that this in fact occurred twice on separate occasions when the Applicant presented to Dr Petch. The Respondent however has not chosen to take issue with the first occasion when the Applicant did this, by implication because they accepted he had some reasonable basis for his concerns on this occasion.

What is a relevant other matter for the Commission’s consideration though, is that on the first occasion the Respondent directed the Applicant to attend a medical assessment on 27 January 2021[28] the Applicant was put on notice that failure to meet this requirement may result in disciplinary action up to and including the termination of his employment. Dr Petch in his evidence mentioned the Applicant said he was aware of this risk.[29] Consequently, when the Applicant declined to consent to the medical assessment on both occasions, including the second occasion on 28 April 2021, he was aware that he was placing his job in jeopardy.

A relevant consideration that weighs against finding that the dismissal of the Applicant was unfair is the fact that his behaviour negatively affected a number of other employees. The evidence is that Mr Scott was, unsurprisingly, upset to hear what the Applicant had said about him on 19 July 2020. It is also clear that on 31 July 2020, Mr Belling felt intimidated by the Applicant’s behaviour towards him and, to a lesser extent, also upset by the Applicant’s behaviour towards him on 19 July 2020. Finally, Ms Mason was open about the fact that she felt “super uneasy” on 31 July 2020 about the way Applicant was behaving towards Mr Belling.

It is also of concern that, whilst he may have apologised for some of his behaviour, the Applicant lacks the insight to appreciate the upset it has caused to others. Indeed, a number of the witnesses expressed serious concerns if the Applicant was to return to work on site.[30]

Conclusion

In all the circumstances the Applicant’s dismissal was not harsh, unjust or unreasonable. The Applicant was not unfairly dismissed.

Consequently, this Application will be dismissed.

Appearances:

F Fluri and C Fluri, Applicant.
J McLean of Counsel, Respondent.

Hearing details:

2021.
Perth:
September 7 and 8.

[1] Medical Report of Dr Hannes Gebauer dated 9 March 2020.

[2] Transcript at PN 1013.

[3] Ibid, PN 1025.

[4] Witness Statement of Ivor Belling, Annexure 1.

[5] Ibid.

[6] Witness Statement of Johnathon Owens, Annexures 2 and 3.

[7] Transcript at PN 150-163.

[8] Ibid, PN 315 – 334.

[9] Ibid, PN 209.

[10] Ibid, PN 214.

[11] Ibid, PN 215.

[12] Ibid, PN 217.

[13] Ibid, PN 209-223.

[14] Witness Statement of Roberto Kilian at Paragraphs 12-13 and 16.

[15] Ibid, Annexure 6.

[16] Witness Statement of Johnathon Owens, Annexure 10.

[17] Ibid.

[18] Ibid, Annexure 11.

[19] Ibid, Annexure 22.

[20] Transcript at PN 231 and 250.

[21] Witness Statement of Dr Edward Petch at Paragraphs 32-36; Transcript at PN 842.

[22] Witness Statement of Johnathon Owens, Annexure 23.

[23] Witness Statement of Johnathon Owens, Annexure 30.

[24] Australian Human Rights Commission: 2010 Workers with Mental Illness: a Practical Guide for Managers.

[25] Response to Show Cause Letter 24 May 2021, attachment JLO28 to Mr Owens’ Statement.

[26] Psychiatric Report 11 January 2021 (Court Book Tab 2); Medical report 15 July 2021 (Court Book Tab 28); Phycologists Statement 23 August 2021 (PN285).

[27] Outcome of Fair Treatment Review 12 January 2021 (Court Book Tab 18).

[28] Witness Statement of Johnathon Owens, Annexure 16.

[29] Transcript at PN 133.

[30] Witness Statement of Craig Appleton at Paragraph 30; Witness Statement of Ivor Belling at Paragraphs 26-28; Witness Statement of Timothy Scott at Paragraph 31-35.

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