Peter Tainsh & Markus Willner v Co-Operative Bulk Handling Ltd
[2021] FWC 4222
•5 NOVEMBER 2021
| [2021] FWC 4222 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Peter Tainsh & Markus Willner
v
Co-Operative Bulk Handling Ltd
(U2021/1599 & U2021/1609)
DEPUTY PRESIDENT BEAUMONT | PERTH, 5 NOVEMBER 2021 |
Application for an unfair dismissal remedy – excluding an employee – application dismissed
[1] Mr Tainsh commenced employment with Co-operative Bulk Handling Ltd (CBH) in June 2008. He was an electrician on CBH’s maintenance team, working at the Albany Terminal, in the state of Western Australia. Mr Willner, his colleague and also an electrician, did not have the same period of continuous service with the business as compared to Mr Tainsh, albeit he had worked for the company on multiple occasions. Mr Willner commenced employment with CBH in July 2017, again on the maintenance team. However, before being employed on a permanent basis, Mr Willner worked as a ‘contract’ electrician through KI Recruitments for approximately two years (2015-2017), and before that, he worked with CBH in 2004, and then again between 2008 and 2010.
[2] On 5 February 2021, CBH terminated the employment of Mr Tainsh and Mr Willner (the Applicants) on the basis of serious misconduct. There was no dispute that the Applicants were paid in lieu of five weeks’ notice. That letter of termination set out that the Applicants had engaged in bullying conduct, which was in contravention of CBH’s The Way We Work – Business Code of Conduct (Code of Conduct), its Workplace Harassment, Discrimination, Bullying and Equal Opportunity Employment Procedure (Harassment, Discrimination and Bullying Procedure) and their employment contracts. The bullying conduct was said to be:
[M]aking Dale Sivwright and Garnet O’Connell feel unwelcome in the smoko room including ignoring Garnet O’Connell when he said ‘Good Morning’.
[3] To explain, Mr Sivwright was the initial complainant about the alleged bullying. He was a labour hire worker provided by a company called Ready Force. A boilermaker by trade, he had worked with the Applicants. After being informed that he was to be dismissed,
Mr Sivwright informed CBH management of the alleged ‘bullying’ by the Applicants, directed not only towards him, but also to two of CBH’s apprentices. Those apprentices were Mr O’Connell, a mature aged electrical apprentice, and Mr Lyndon Pasutti, the apprentice fitter.
[4] While Mr Sivwright undoubtedly levelled the complaint of bullying against the Applicants and some others, it was ultimately Mr O’Connell who was primarily subjected to the purported bullying, and at hearing it was Mr O’Connell who provided evidence on behalf of CBH.
[5] When it came to the termination of the Applicants’ employment, the termination letters detailed several reasons why CBH had dismissed them. The author of that letter and the decision maker regarding the Applicants’ dismissals was Mr Piercey, the General Manager – Albany Zone CBH. In respect of Mr Tainsh, Mr Piercey wrote in the termination letter to the effect:
a) ‘it was disappointing that even at this late stage, you continue to attack the investigation process and fail to take responsibility for your actions’;
b) the remorse expressed about his conduct towards Mr O’Connell and Mr Sivwright feeling ‘unwelcome in the smoko room’ only came about after he was advised CBH was disappointed in his lack of remorse and was considering the termination of his employment;
c) the further response received from Mr Tainsh did not address concerns about safety and welfare of others – noting that the fact that Mr Tainsh said he was ‘not aware’ that he did anything to cause Mr O’Connell or Mr Sivwright to feel ‘uncomfortable’ and that he would have ‘no difficulty treating either of them with dignity, courtesy and working alongside Garnet professionally going forward’ showed a lack of understanding of the nature of his actions and the impact upon others in the workplace;
d) that he did not have confidence in Mr Tainsh complying with CBH policies given he blatantly disregarded the investigation process and the requirements of the suspension and failed to notify of intended interstate travel; and
e) Mr Tainsh undertook Code of Conduct Training on 28 May 2019 and was a senior member of the maintenance team.
[6] On 5 February 2021, CBH also terminated Mr Willner’s employment on the basis of serious misconduct, informing Mr Willner of those matters discussed at paragraph [5] (a) to (e) of this decision. Mr Willner’s termination letter, whilst similar to Mr Tainsh’s, did not refer to interstate travel. 1 It did however outline that he had engaged in bullying conduct in contravention of the Code of Conduct, CBH’s Harassment, Discrimination, and Bullying Procedure and his employment contract. The bullying conduct in question again was:
…you repeatedly made Mr Sivwright and Mr O’Connell feel unwelcome in the smoko room, including ignoring Mr O’Connell when he said good morning. 2
[7] The Applicants have applied for unfair dismissal remedies under s 394 of the Fair Work Act 2009 (Cth)(Act). As their dismissals arose from the same set of circumstances, the applications were heard together and therefore this decision addresses both applications.
[8] Briefly stated, I have determined to dismiss the applications as I have concluded that the Applicants were not unfairly dismissed. The reasons for these decisions follow.
1 Background
[9] Mr O’Connell began working for CBH in 2018 as an adult electrician. He explained that CBH’s maintenance team consisted of six electricians, six fitters, two supervisors, an apprentice electrician, and an apprentice fitter and boilermaker. 3 The electricians and fitters were split into two shifts or crews.4
[10] The maintenance team worked a four day rotating roster. This involved two crews working a 12 hour shift on either a day shift or a night shift. The day shift ran from 7am to 7pm and the night shift, from 7pm until 7am. 5 Two electricians were assigned to day shift and one to night shift.
[11] Whilst there were initially two ‘seniors’ on the maintenance team they were replaced in December 2019, with supervisors Mr Darcy Stephens and Mr Beau Rogers. 6 Mr Machiel Moolman became the maintenance superintendent.7
[12] Under Mr Stephens’ supervision was the crew of Mr Alan Maris, Mr Gary Brown and Mr Andrew McLean. The other crew under Mr Rogers consisted of Mr Paul Babun, Mr Willner and Mr Tainsh. 8 The fitters under Mr Rogers were Mr Andrew Young, Mr Will Golling and Mr Ryan Lamont.
[13] Regarding the apprentices, it was said that the most recent persons occupying those roles were Mr Lyndon Pasutti as the apprentice mechanical fitter and Mr O’Connell as the electrical apprentice. 9 The apprentices worked weekdays from 7.00am to 3.30pm.10 They were assigned work by the maintenance supervisors and their supervision was undertaken by the relevant tradesperson they are assigned to work with on each day.11 The apprentices attended TAFE once a week.12
[14] Mr O’Connell said that during the first two years of his employment he split his time evenly across both crews of electricians. 13 He described his relationship with Mr Tainsh as good prior to the segregation of the crews during the COVID-19 lockdown. Mr O’Connell noted that even after the COVID-19 lockdown, there were times that Mr Tainsh would be friendly to him if they were alone together but that changed when in the presence of Mr Willner.14
[15] Mr O’Connell described Mr Willner as being generally dogmatic and opinionated about how things should be done. 15 However, whilst he said that he tiptoed around him a bit for the first couple of years of his apprenticeship, he held the view that generally he got along with him.16
[16] When the COVID-19 lockdown occurred in March 2020, CBH allocated the two apprentices to work with only one crew. Mr O’Connell asked Mr Moolman if he could work on Mr Stephens’ crew, and the requested was granted. 17 In June 2020, after the COVID-19 lockdown had ceased, Mr O’Connell moved back to Mr Rogers’ crew.
[17] Before moving to the background of matters germane to the present application, that is the alleged bullying by the Applicants against Mr O’Connell, it is important to provide further context regarding the work environment and the interactions of those within it.
1.1 Work ethic of the crews and general work environment
[18] Mr Rogers, the supervisor of the crew consisting of Messrs Tainsh, Willner and Babun gave evidence that he was put in charge of that crew as it was felt that the crew required more electrical supervision. 18 Elaborating, Mr Rogers noted that whilst this crew was experienced and technologically knowledgeable, they were challenging in respect of needing a lot of prompting and instruction about how they would go about a task.19
[19] It was Mr O’Connell’s view that Mr Stephens’ crew worked harder than Mr Rogers’ crew, with the consequence that the crews were referred to ‘A’ and ‘B’ team respectively. 20 Mr Brown confirmed that he had also heard the two crews being referred to as the ‘A’ and ‘B’ team, and that the division had been going on for a couple of years but had desisted about ‘six months ago’.21
[20] Concerning the work ethic of Mr Rogers’ team, Mr McLean gave evidence that in 2020 there had been a competition between his team and Mr Rogers’ team which related to plan and workflow. 22 Mr McLean observed that Mr Rogers’ team took longer to get through the plan and his team would generally get more of the job done.23
[21] In giving his evidence Mr Tainsh acknowledged that Mr Stephens’ team was referred to as the ‘A’ Team, 24 and that the team he was on was referred to as the ‘B Team’.25 When asked in cross examination ‘[Y]ou didn’t like that, did you?’, Mr Tainsh replied, ‘[W]e didn’t actually – we weren’t actually bothered about that at all’.26
[22] In his witness statement in reply, 27 Mr Tainsh gave evidence that he recalled having a conversation with Mr O’Connell in June of 2020 in which Mr O’Connell expressed that he had felt bullied. During that conversation Mr Tainsh said he asked Mr O’Connell to provide examples of where he had been bullied, and Mr O’Connell referred to not having been included when coffee was collected – an activity which is described at length at paragraphs 25 to 32 of this decision. Mr Tainsh then said:
I did not say to him the reason he was being excluded was because he chose the other shift. I never said we excluded him. I did not accept any of Garnet’s propositions. I did not agree with any of Garnet’s bullying accusations. I did say to him ‘There is a perception that you don’t actually like us and prefer the other shift over us. You refer to us as the ‘B’ team and the other shift as the ‘A’ team and while you might think it is funny, we don’t. 28
[23] In cross examination this evidence was explored further with Mr Tainsh. The following passage is extracted from the transcript:
Really?---Yes.
Can you go to page 620, please. Do you see there that's a part of your statement in reply; do you agree?---Yes.
Do you see that you've said, in inverted commas as words you've spoken to Garnet, 'You refer to us as the B Team and the other shift as the A Team and while you might think it is funny, we don't.' Do you see that?---I see that, yes.
Why didn't you find it funny?---Because it was a rivalry that we didn't actually entertain. It was all one-sided.
You didn't just not entertain it, Mr Tainsh, you didn't appreciate it, did you?---Well, it wasn't an issue for us. We just - it wasn't something that we had actually bothered about.
Why did you raise it with Mr O'Connell?---Well, because he raised it with me.
No, he didn't. On your statement you say he said to you that he was being excluded because you chose the other shift?---Yes.
You volunteered and according to your statement you say :
I did say to him, 'There is a perception that you don't actually like us and prefer the other shift over us. You refer to us as the B team and the other shift as the A team, and while you might think it is funny we don't'.
So you were the one who raised it, Mr Tainsh. Why did you raise it if it wasn't important to you?---Because I said that was the perception.
No, read the sentence again. The perception related to him not actually liking your team and preferring the other shift, then you said:
You refer to us as the B team and the other shift as the A team, and while you might think it is funny we don't.
That is you raising the A team/B team issue, isn't it?---Yes.
Yes, and you saying you don't find it funny?---No, I don't find it funny, but that doesn't mean that it was a big deal. 29
[24] Mr Willner similarly acknowledged that the two crews had been differentiated by reference to an ‘A Team’ and a ‘B Team’, 30 and he thought it childish.31 He went on to say that he had heard Mr Rogers referring to the two crews as such but did not know where it started and never engaged in it. Mr Willner said that he had also heard Mr McLean refer to the two teams in those terms.
1.1.1 Coffee excursions
[25] Mr O’Connell explained that pre-start commenced at 7am and the smoko break was between 9.30am and 10am. Mr O’Connell said that Mr Tainsh and Mr Willner regularly left site in the CBH truck to get coffee from a coffee shop and the timing of the trip was often straight after the pre-start. Mr O’Connell estimated that at a minimum the Applicants would be absent from work for 30 minutes, but at times it would extend to an hour and a half. 32
[26] In the first year of his apprenticeship, Mr O’Connell conceded that he also went with the Applicants on the excursions to purchase coffee. 33 He noted, however, that he did not purchase coffee because he did not want to be seen as participating in what the Applicants were doing.34 Mr O’Connell said he was referred to as a ‘scaredy cat’ by the Applicants and after a year he declined to go on the coffee excursions.35 Mr Willner denied having referred to Mr O’Connell as a ‘scaredy cat’.36
[27] Mr McLean gave evidence that the Applicants went to town most days to get a coffee after pre-start. 37 Mr McLean clarified that his crew of electricians did not go to town to get coffee outside of break times but went to the IGA at smoko or at lunch.38
[28] During the hearing CBH relied up an aide memoire that detailed the roster of the Applicants from June 2020 until December 2020, and a calendar that detailed the coffee purchases during the time period that had been drawn from information on the Applicants’ bank statements. 39 Mr Willner was asked to confirm whether a shut-down occurred in the period of 1 to 15 September 2020.40 He replied ‘[Y]es’.41 The following dialogue thereafter ensued:
So, Mr Willner, looking at the - do you have the calendar there still with you?---Yes - - -
- - - calendar? All right. So you can see that on the 2nd there are two entries, on the 3rd there's one entry, on the 8th there's one, on the 9th there are two, on the 10th there's one, 11th one, 14th one, and 15th two. Now, does that suggest to you that during the shut-down period you and Mr Tainsh went for coffees on a pretty regular basis, over 50 per cent of the shut-down days?---We get a half-hour break in the morning.
I'm just asking you how often you went for coffee, roughly, during shut-down?---I can't remember.
All right. So you don't remember ever going for coffee during shut-down 2020?---I can't remember.
You don't remember ever going for coffee in shut-down 2020?---I'm not saying that I don't remember, I just - I can't remember when.
Okay. But do you remember going on a pretty regular basis during shut-down 2020?---I don't think it was regular.
After your pre-start you were supposed to not leave the site until smoko time at 9.30, aren't you?---That's correct.
So you shouldn't be taking a break between pre-start and smoko?---Well, yes.
But you and Peter had a habit of going for coffee well before smoko time, didn't you?---Sometimes we would have smoko a bit earlier, but we were allowed to do that; depending on breakdowns and stuff like that, we kind of take our own time.
You would go to Haz Beanz or Fredericks in the work truck?---Yes. 42
[29] Through the course of cross examination Mr Willner denied going on a coffee break after pre-start or immediately on having completed isolations. 43 Mr Willner confirmed that he would usually go at 9.20am or 9.30am. However, as cross examination continued, the following evidence was elicited:
You thought you were entitled to go for coffee outside of the official smoko time, didn't you, Mr Willner?---Well, we used to just take a half an hour break.
Whenever you liked?---Yes, pretty much.
And you thought you were entitled to do that?---It has always been the case. 44
[30] Insofar as Mr Tainsh took coffee breaks offsite, he gave the following evidence in his witness statement:
For approximately three years from 2017 until August 2020 when CBH installed the coffee machine in the office, after finishing the isolations and before starting on our other work for the day, assuming there were no breakdowns, I drove to Haz Beanz, a nearby cafe, in the truck to pick up a takeaway coffee. 45
[31] In cross examination, Mr Tainsh relayed the following:
Now, you're conveying by that statement, aren't you, Mr Tainsh, that the morning coffee run was your usual practice?---No.
You're conveying that habitually you went on a morning coffee run?---No.
It certainly wasn't something that you did only rarely, was it?---No, that's not true.
So you did it only rarely, did you?---It wasn't habitual.
Okay, so was it rare?---It wasn't rare, but it wasn't habitual.
It wasn't rare, okay. If Markus was on shift with you, he would usually come with you, wouldn't he?---Sometimes.
Would he usually come with you? More than 50 per cent of the time, let's say?---Possibly, yes.
Okay. If Paul was on shift with you, he would sometimes come with you but not always?---Yes.
You say sometimes you went by yourself?---Yes.
You regularly invited Garnet to come?---No.
You didn't invite him to come?---We did initially, but then Garnet wasn't interested.
Right, so he came with you occasionally?---Yes.
Then he stopped?---Yes.
He told you that he was worried about coming because he knew you weren't allowed to go for coffee and he didn't want to get into trouble, didn't he?---No.
He didn't tell you that?---There was no - we were allowed to go for coffee. There was no direction that we weren't allow to go for coffee.
Did Garnet say he was worried about coming because he didn't want to get into trouble, because he knew you weren't allowed to go?---Yes, but that wasn't the case.
Right, so he did say it, but he was wrong?---Yes.
Did you call him a scaredy-cat for saying that?---No. 46
[32] As to whether Mr Tainsh was authorised to take the coffee breaks in the manner that he did, he gave the following evidence in cross examination:
Don't you think, since he has been your supervisor all of 2020, if you wanted to make up your own smoko time you could have asked him, 'Is it okay if we go right after prestart for a coffee'?---We didn't make up our own smoko time.
Well, you did, didn't you, because you left right after prestart for a coffee habitually?---For 10 minutes.
You didn't ever ask permission of Mr Rogers to do that, did you?---No, because after 12 and a half years we never had to.
You felt entitled to go when you pleased?---It was the accepted practice. 47
1.1.2 Quality of training
[33] Mr O’Connell described the electricians on Mr Rogers’ crew as rushing through work and taking short cuts, noting that there was very little teaching involved. 48 He said that he was often left behind when Messrs Tainsh, Willner and Babun went to breakdowns and jobs.49 When he was taken to jobs, he would be the one doing the work while Messrs Tainsh, Willner and Babun often sat around on their phones.50 Mr O’Connell said that he was rarely given any direction at work, and was often left to his own devices.51
[34] Mr Tainsh disagreed with Mr O’Connell’s account about the quality of his training, noting that the training in Mr Rogers’ team was good, if not better, than that provided by the other team. 52 While Mr Tainsh initially said that Mr O’Connell was conscientious and liked to get on with the job, during cross examination Mr Tainsh affirmed that at times Mr O’Connell was lazy when it came to do menial jobs.53 Later Mr Tainsh clarified that he did not say that ‘…sometimes he’s lazy’.54
1.1.3 Working with Andrew McLean in Silo 1
[35] Mr O'Connell said that when he worked with Mr McLean he would often take the lead and Mr McClean never objected to him doing so. 55
[36] During a shutdown in 2019, Mr McLean and Mr O'Connell were working together in ‘Silo 1’. Mr O'Connell said that they had a disagreement about the way to do a particular job. 56 He said that ultimately Mr McLean agreed with what he wanted to do. He further noted that there was no tension between the two of them and there was no problem with the way he suggested doing the job.57
[37] Mr O'Connell said that after the job had been completed, Mr Willner approached him and asked him why he had approached the job in that way. 58
[38] Mr McLean gave the following account about his interaction with Mr O’Connell during the shutdown in 2019:
We were doing some conduits to drop the new cables down. I wanted to do three or four one way and do the others in a different position. Garnet wanted them all done in on way. We did not have time to do it the way he wanted and did it my way. Garnet got a bit angry about it. There was no wrong way of putting the conduct down he just wanted it all to be uniform. 59
[39] Mr McLean stated in his witness statement that while Messrs Tainsh and Babun were working five to seven metres away when the interaction with Mr O’Connell occurred, he did not recall them getting involved in the argument. 60 However, in giving his evidence at hearing, Mr McLean said that he possibly complained to Mr Willner about the fight with Mr O’Connell but considered it only a small fight.61 Mr McLean noted that Mr O’Connell came along later and changed the work.
[40] Mr McLean continued that he accepted that he complained or whinged to both Mr Tainsh and Mr Babun about Mr O’Connell in respect to not listening to instructions. 62 Mr McLean continued noting, ‘It’s just like whinging, yes. Whinging… Not serious… It’s not too serious, yes. I would just be talking to them, just talking to them like they’re mates as well, they’re my shift mates’.63
1.1.4 Interactions with Mr Babun
[41] Mr Babun said that while Mr O’Connell was an apprentice, he did not follow his instructions. 64 Mr Babun provided an example where Mr O’Connell adamantly refused to do some work. Mr Babun said that on one occasion on 25 July 2019, he asked Mr O’Connell to check the details on a motor plate so that he could replace the motor on the recirculation fan with a new motor which matched the details on the name plate. Mr O’Connell refused, necessitating Mr Babun to make the request five times until Mr O’Connell reluctantly carried out the task.65
[42] On a subsequent occasion, Mr Babun explained that he attempted to describe to Mr O’Connell how to go about dealing with a break down call out. However, as he explained this to him, Mr Babun said that Mr O’Connell turned his back on him and walked off. Shocked at Mr O’Connell’s rudeness he called out to him but was ignored. 66
[43] In response to Mr Babun's evidence, Mr O’Connell said he did not refuse to check the details on a motor plate when asked to do so by Mr Babun and did not ignore Mr Babun when he explained to him how to go about dealing with a break down. 67
[44] Mr O'Connell said that on one occasion Mr Babun made a comment in the HV room about things being stolen since the apprentices had started. 68 Mr O'Connell said that Mr Babun’s remark was not true, noting that he had heard that things had been stolen long before he had started at CBH. Mr Connell said that he pulled up Mr Babun about saying such things as it was a serious accusation.69 After that interaction, Mr O’Connell said that Mr Babun started having little digs at him about things being stolen.70 For example, Mr Babun would ask Mr O’Connell to pass him a hammer, and would say ‘nice hammer, where did you get it’.71
[45] Mr Babun denied making an allegation that things had been stolen from the HV room after the apprentices started. 72
[46] It was Mr O’Connell’s view that Mr Babun was difficult to understand, and when he asked Mr Babun questions about the work, Mr Babun would exhibit frustration. 73 Mr O’Connell recalled that Mr Babun would often say ‘you’re not listening’ while tapping his pointer finger on his head and ‘getting’ into Mr O’Connell’s face.74
1.1.5 High fives
[47] Mr O'Connell said that on completing a task he would often ask the guys on the crew for a ‘High 5’ as a way to build morale and create positive environment at work. He said that he did this with everyone he worked with. In Mr O’Connell’s view, Mr Tainsh appeared to happily accept his high fives, as did everyone else. 75
[48] Mr Babun said that whilst Mr O’Connell was in his mid-30s, he always needed constant reassurance and affirmation when performing a job. 76 Mr Babun elaborated, noting that when Mr O’Connell completed a task he would say ‘I’ve done a good job haven’t I?’ and would say ‘high five’ seeking affirmation that he had done a good job.77 Mr Babun said that he found this strange for an adult apprentice, or for anyone in a work context, and while he found it awkward, he always gave Mr O’Connell a ‘high five’ when asked.78
1.1.6 Menial jobs
[49] Mr O’Connell said that he was rarely asked to clean or perform menial jobs but would, in any event, do them without being asked. He swept the floors and emptied the bins and generally tided up outside. At times he put coffee in the containers and would get the milk.
[50] In response to evidence provided by Mr Tainsh, Mr O'Connell said he did not ever refuse to sweep the floors or refuse to clean the truck if asked to do so. Further, he did not say to Mr Tainsh ‘fuck off it's not my job’ or anything similar when he had been asked to clean. 79
1.1.7 Culture within teams
[51] Mr O’Connell described a work environment where people joked around, and at times made jokes that were lewd. 80 He admitted showing pornographic images to others in the workplace and was not aware that Mr Tainsh had objected to seeing pornographic images at work.81 In response to evidence that he had simulated oral sex whilst eating a banana, he said that he could not recall doing so, but if he did he would have not done so regularly – and may have done it as a joke when eating a banana.82
[52] There was evidence given about Mr O’Connell ‘giving someone the finger’. In response Mr O’Connell said that another employee used to put his middle finger to his forehead as a sly way of ‘giving someone the finger’, but he could not recall doing this to either Mr Tainsh or Mr Willner. 83
1.2 After the COVID-19 lockdown
[53] Mr O’Connell said that after June 2020, he returned to working across both crews. According to Mr O’Connell, at this time he was immediately ignored and excluded every day by the electricians on Mr Rogers’ crew.
[54] On entering the smoko room in the morning and saying, ‘good morning’, Mr O’Connell said that there would be no acknowledgement by Mr Rogers’ crew. After the pre-start, Mr Rogers’ crew would go into the workshop and when he turned his back, they would scurry out of the door behind him and go off in the truck. 84
[55] Mr O’Connell said that on occasions he followed the crew out of the workshop to ask questions about the day’s work. He said that they did not acknowledge him and just walked off. 85 Mr O’Connell said that this occurred regularly.86
[56] Mr O’Connell reported that it was predominately the Applicants who behaved this way towards him; albeit Mr Babun was involved, but to a lesser extent. 87
[57] Mr O’Connell gave evidence that:
a) ‘they’ used to talk in code to one another about him. For example, calling him ‘the leopard with changing spots’ or ‘snake’;
b) he had dirty earbuds, rubbish and drawings left on his desk, up to a few times a week;
c) Mr Willner placed rubbish on Mr Babun’s desk, and Mr Babun, thinking that Mr O’Connell had done it, threw the rubbish onto Mr O’Connell’s desk; and
d) Mr O’Connell had the number ‘666’ and a picture of the devil’s face with a tail placed on his desk.
[58] According to Mr Willner some people put rubbish on other people’s desks, but he had no idea who did it. 88 When asked whether the things left on desks included dirty ear buds
Mr Willner replied ‘[D]efinitely, yes’.89
[59] It was suggested to Mr Willner that Mr McLean said that he knew it was someone on Mr Willner’s shift who left the rubbish. 90 Mr Willner replied, ‘I am unaware of that’. However, Mr Willner conceded that he had seen Mr McLean’s witness statement and acknowledged that Mr McLean said that when he came back after being away and Mr Willner’s shift had been in the workshop, rubbish was left on his desk.91 However, when asked whether he agreed that someone on his shift had put rubbish on Mr McLean’s desk Mr Willner replied ‘[N]o’,92 noting that it could be someone else but he had no idea who.93
[60] In late June 2020, Mr O’Connell spoke to Mr Babun and Mr Tainsh about his thoughts that they were bullying him. Mr O’Connell said Mr Tainsh informed him that the reason he was being excluded was because the three electricians held a perception that he chose the other shift. 94 Mr O’Connell said that he responded to Mr Tainsh saying ‘what do you expect… one group of guys who were putting in effort and teaching and training me, and another group that were not willing to put any time into me’.95
[61] Mr O’Connell explained that in late-August to September 2020 there was an incident involving a toy gun. Messrs Tainsh, Willner and Babun had, according to Mr O’Connell, been driving into town every day to get coffee after pre-start. Mr O’Connell said that they did not need the truck to travel to the worksite because they were working on the silo side of the rail. As Mr O’Connell was having to walk the tools over to the worksite, he took the keys out of the truck to stop Mr Rogers’ crew from going to get coffee.
[62] Mr O’Connell said that he walked up to the bench and was standing about three metres away from Messrs Tainsh, Willner and Babun 96 when Mr Tainsh said to him three times, ‘Markus wants your arse’. Mr O’Connell stated that he replied ‘[N]ot one of you will challenge me physically so don’t start’. Mr O’Connell said that Mr Tainsh replied, ‘[B]ut we’ve got guns’. Mr O’Connell said that he laughed at the group and responded, ‘Well you’ve got to have a good shot because it’s going to take more than one bullet to take me down’.97
[63] Mr Babun said that he had no recollection of there being a time where Messrs Willner and Tainsh wanted to use the truck and there were no keys in it, 98 or there having been an incident where Mr Tainsh informed Mr O’Connell that ‘Markus wants your arse’.99
[64] Similarly, Mr Willner said that he could not remember there not being any keys in the truck in late 2020, or Mr Tainsh having informed Mr O’Connell that ‘Markus wants your arse’. 100
[65] Whilst admitting that on a coffee run he usually took the CBH truck, Mr Tainsh could not recall Mr O’Connell taking the keys to the truck in late 2020 or making the remark ‘Markus wants your arse’. 101
[66] Following, what Mr O’Connell referred to as the ‘we’ve got guns’ incident, Mr O’Connell said that in late 2020, before Mr Tainsh went on a period of leave, he looked at Mr O’Connell directly in the eyes and pointed a toy gun at him and pretended to shoot him. His face was expressionless. 102 Mr O’Connell said that a few days later Mr Tainsh repeated the behaviour.103
[67] Mr O’Connell reported that he started to take photos of his work due to his concern that Messrs Tainsh, Willner and Babun would tamper with it. He communicated this to Mr Rogers, who purportedly advised him to lock up his work. 104
[68] Mr O’Connell gave evidence that he had observed the other crew excluded Mr Sivwright. 105 Further, Mr O’Connell said that Mr Brown had been subjected to poor behaviour by Mr Rogers’ crew during a shutdown in September 2020. It was Mr O’Connell’s evidence that Mr Brown pulled up Mr Babun twice about his behaviour. On one occasion
Mr Babun was said to have had a go at Mr Brown for sitting on his chair in the smoko room.106
[69] Mr Brown acknowledged that during a shutdown in 2020, he and Mr Babun had a disagreement which was sorted out personally. 107 Mr Brown said that he had informed Mr O’Connell that he could see how jokes could get out of hand with the other team of electricians.108 Mr Brown also gave evidence that Mr O’Connell spoke to him about the ‘other team’s behaviour towards him approximately one year ago’,109 and that he had observed ‘Garnett’s mental health decline in the last six months he was at CBH’.110
1.3 Text messages
[70] During the course of cross examination Mr Willner was taken to an exchange of text messages between him and Mr Tainsh. The exchange started on 12 June 2020 after the COVID-19 lockdown and at a time where Mr O’Connell had recommenced with Mr Rogers’ crew. The text messages read:
08:40:08 Peter Tainsh: | You left me with hi five boy |
08:40:23 Peter Tainsh: | I’m sending him round to your house |
08:40:37 Peter Tainsh: | He wants to go give you |
08:40:46 Peter Tainsh: | A hi five 111 |
[71] Mr Willner was asked in cross examination whether the reference to ‘hi five boy’ was a reference to Mr O’Connell. 112 Mr Willner confirmed that it was.113 Mr Willner was asked further questions as to whether he considered the reference was ‘nice’ and he responded ‘[N]o]’.114 As to whether the tone of the text message and its content was indicative of the communications Mr Tainsh and Mr Willner had concerning Mr O’Connell, Mr Willner confirmed that the text message was a one off and out of the blue.115 When asked ‘[S]o you've never spoken in terms similar to those in these text messages?’ he replied ‘[N]o’.
[72] Mr Tainsh was taken to a tranche of text messages between him and Mr Willner on 3 November 2020. The following dialogue ensued between the two:
14:02:24: | How s your day going |
14:02:47 Peter Tainsh: | Garnetto great! |
14:03:00: | Lol |
14:03:15 Peter Tainsh: | I’ll be glad when he leaves at 3:30 |
14:03:30: | I’ll high five him then |
14:04:22: | I’m feeling a bit better might come in at 6 |
14:04:34 Peter Tainsh: | Hahaha 116 |
[73] Mr Tainsh was asked whether his reference to ‘Garnetto great!’ was him being sarcastic, to which he replied, ‘[N]o, not necessarily’. 117 As the cross examination advanced Mr Tainsh was asked about the tone of the text messages, that is the meaning conveyed:
You don't think it's nasty to say, 'Garneto, great! I'll be glad when he leaves at 3.30. I'll High 5 him then?'---No, I don't think it's being nasty.
You don't think it's disrespectful?---No.
You don't think it's rude?---No.
Okay?---These were private conversations.
But what they indicate, don't they Mr Tainsh, is that you and Markus were not well-disposed towards Garnet as at late 2020?---No, that's not true.
So you were well-disposed towards him, were you?---We treated everyone with respect and dignity. We didn't - - - 118
[74] Mr Tainsh continued:
You don't treat someone with respect if you say, 'Garneto, great, I'll be glad when he leaves at 3.30.' That's not respectful, is it, Mr Tainsh?---Well this is a private conversation. We didn't say this to his face.
So behind his back you were nasty, but to his face you were always nice, were you?---Well people say things in text messages. It doesn't mean that that's how they behave to people in-person. 119
[75] Mr Willner was similarly asked questions in cross examination about the exchange of text messages between him and Mr Tainsh on 3 November 2020.
And do you see that you ask Peter how his day is going at 2.02 in the afternoon, and he says, 'Garneto great.' Peter is being sarcastic there, isn't he?---I'm not sure.
Well, that's Peter having another private joke with you at Garnet's expense, isn't it?---I don't know.
Well, your reply is, 'LOL.' What does that signify to you?---Means typing error. I don't really know.
Mr Willner - - - ?---Text.
Are you seriously suggesting that you don't know what LOL means, when you've used it in this text?---I know what LOL means, yes.
All right. What does it mean?---Lots of love.
Okay. So if you're laughing when he says, 'Garneto great,' does that indicate to you that Peter is making a joke?---In what context?
A joke at Garnet's expense. He's taking the mickey out of Garnet?---I didn't take it like that.
Really? You see Peter goes on to say he will be glad when Garnet leaves at 3.30 pm and he will high-five him then. Does that suggest to you that you were having another private joke at Garnet's expense on 3 November 2020?---I can't really see my replies.
Well, I will help you. See how it says 'in'? See the word 'in' in that column that says 'in' and 'out'?---Yes.
Go down to the first one where it says 'out' for 3 November, 'How's your day going'?---Yes.
That's you sending a message to Peter Tainsh at 2.02 pm. Okay?---Yes.
And then you see the next line is Peter Tainsh to you, that's why it says 'in'. Okay?---At six, 'I'm feeling a bit - - - '
No, I'm in about the middle. We've gone back to the start?---Yes. 120
Okay. So 'out', 'How's your day going?' That's you to Peter. 'In', 'Garneto great,' that's Peter to you. 'Out', 'LOL,' that's you to Peter. 'In', 'I'll be glad when he leaves at 3.30. I'll high-five him then,' that's Peter. Now, the next one is a little bit confusing because you send a longer message. You say, 'I'm feeling a bit better. Might come in at 6.00.' And then you can see the last message is Peter to you, that's an 'in' one, 'Ha ha ha.' Okay, so now we've gone through them and you know who has said what. Are you able to agree with me that this is another joking session between you and Peter about Garnet seeking high-fives in the course of his work?---It could have been. I don't know.
…
And you see Mr Tainsh thinks that's very funny. Why would Mr Tainsh think that was very funny?---I can't remember.
All right. So do you agree with me, Mr Willner, that what these text messages show is that from the period encompassing 12 June 2020 to 3 November 2020 you were engaged with Mr Tainsh in private jokes at Garnet's expense?---I can't remember that.
1.4 Workplace investigation
[76] Mr Piercey said that in or around early November 2020, Mr Moolman, one of his nine direct reports, advised that Mr Sivwright had made allegations of bullying and inappropriate workplace behaviour against members of the maintenance team. 121
[77] Mr Moolman said that after having informed Mr Sivwright that he was dismissed, Mr Sivwright discussed allegations of workplace bullying with him. 122 On receipt of those allegations, Mr Moolman said that he reported Mr Sivwright’s allegations to Mr Piercey and also had a discussion with Mr O’Connell.123 Mr Moolman stated that he informed Mr O’Connell of the suggestions of bullying occurring against him and Mr O’Connell confirmed this to be the case.124 Mr Moolman continued that Mr O’Connell told him that he wanted to handle it himself.125
[78] A HR investigation commenced but in light of staff changes in the HR department, and the seriousness of the allegations, Mr Piercey said he spoke to Ms Croft, CBH’s corporate lawyer, regarding sourcing a third party to conduct the investigation. 126 The investigation was conducted through external lawyers.127 The respondents to the investigation were Messrs Tainsh, Willner and Babun, and the two mechanical fitters, Messrs Lamont and Young.128 All respondents to the investigation were in Mr Rogers’ maintenance team.
[79] Mr Piercey said that he met with the respondents on 2 December 2020 to advise them that an investigation would be conducted into various allegations. 129 Following that meeting, he wrote to the respondents to confirm what had been discussed at the meeting.130
[80] The letter to Mr Willner of 2 December 2021 was titled ‘Suspension from work with pay and particulars of allegations’. The allegations were set out in the following terms:
Allegation 1
It is alleged you have engaged in bullying behaviour by repeatedly acting unreasonably towards other employees which has created a risk to health and safety, which is a breach of CBH’s Workplace Harassment Discrimination Bullying and Equal Employment Opportunity procedure and ‘The Way We work – CBH’s Business Code of Conduct’. Examples of this behaviour include:
• Subjecting Dale Sivwright to belittling comments including ‘You’re just a dumb boilermaker’
• Ridiculing Dale Sivwright’s work and accusing him of stealing
• Disposing of Dale Sivwright’s tools in the workshop bin;
• Removing Dale Sivwright’s lunch from the fridge and disposing of it in the bin
• Subjecting Garnet O’Connell to threatening behaviour including saying to him “We are going to have your arse boy”, referencing a gun and placing the book ‘Pop goes the Weasel’ on his desk.
• Teasing Garnet O’Connell and stating he was ‘brown nosing’ by completing an electrical instrumentation course
• Calling Garnet O’Connell a ‘weirdo’ for choosing to work instead of having lunch
• Leaving Lyndon Pasuttti behind from jobs and giving him no jobs to do
Allegation 2
It is alleged you have failed to treat others with courtesy, dignity and respect, which is in breach of the CBH’s Code of Conduct ‘The Way we Work – CBH’s Business Code of Conduct’.
Examples of this behaviour include:
• Making Dale Sivwright and Garnet O’Connell feel unwelcome in the smoko room including ignoring Garnet O’Connell when he said ‘Good morning’
• Telling Dale Sivwright and Lyndon Pasutti to slow down
Allegation 3
It is alleged you have failed to uphold safe work practices, which is in breach of CBH’s Code of Conduct ‘The Way We Work – CBH’s Business Code of Conduct’.
Examples of this behaviour include:
• Working on machinery without the appropriate permit and not following the correct safety procedures 131
[81] A letter in precisely the same terms was sent to Mr Tainsh on 2 December 2020, hence it is not replicated.
[82] In response to Mr Piercey’s correspondence of 2 December 2021, Mr Piercey received a letter from the respondents’ lawyers, Schwizer Kobras, on 3 December 2021. Mr Piercey said that on receiving that letter, he did not communicate with the respondents further during the investigation process.
[83] Mr Piercey gave evidence that he read a copy of the report that was generated from the workplace investigation. 132 Having read the report he issued letters to Messrs Tainsh, Babun and Willner titled ‘Outcome of Formal Investigation – Invitation to Attend Disciplinary Meeting’ (Outcome Letters).133
1.5 Disciplinary process
[84] In the Outcome Letters of 8 January 2021, Mr Piercey wrote to the Applicants informing them that one out of the three allegations made against them had been substantiated. That allegation was the second allegation (Allegation Two), which read:
It is alleged you have failed to treat other with courtesy, dignity and respect, which is in breach of the CBH’s Code of Conduct ‘The Way We Work – CBH’s Business Code of Conduct.
[85] The ground for substantiating Allegation Two was explained in the Outcome Letters as follows:
The investigator found that Allegation 2 is proved on the balance of probabilities in relation to one example, being:
• Making Dale Sivwright and Garnet O’Connell feel unwelcome in the smoko room including ignoring Garnet O’Connell when he said ‘Good morning’.
[86] Regarding the other two allegations, Allegation One consisted of bullying behaviour towards other employees, and Allegation Three, was a failure to uphold safe working practices. Concerning these two allegations, Mr Piercey relayed the following:
The investigator round that Allegation 1 is not substantiated. The investigator also notes that while this allegation was not substantiated due to a lack of corroborating evidence, the investigator had no cause to doubt the evidence provided by the complainants in relation to Allegation 1.
The investigator found that Allegation 3 is not substantiated. The investigator also notes that while this allegation was not substantiated due to a lack of corroborating evidence, the investigator had no cause to doubt the evidence provided by the complainants in relation to Allegation 3. 134
[87] At a latter point of the Outcome Letters, Mr Piercey explained to the Applicants:
CBH finds that the conduct youengaged in is serious and in addition to being a breach of your obligations under your Contract of Employment and The Way We Work – Business Code of Conduct, your haviour has had a negative impact on the wider Albany maintenance team and amounts to bullying and harassment. (Italics adopted for emphasis). 135
[88] In cross examination Mr Piercey was asked what he was referring to when he spoke to the ‘conduct’ that the Applicants had engaged in. Namely, was it the conduct described in Allegation One, Two or Three. The following records the question asked and Mr Piercey’s response:
Was the conduct, so far as you were concerned, the conduct that was the subject of all three allegations? – Yes, that’s correct. 136
[89] Before giving that response, Mr Piercey had clarified:
So allegation 1 was not substantiated but the investigator had no cause to doubt the evidence provided by the complainants, and the same with allegation 3. 137
[90] When Mr Piercey was asked about his state of mind as of 8 January 2021 and whether his view was that Allegation One had actually taken place. He responded in the negative noting that it ‘was the opportunity for Mr Willner to come and have his say about the allegations that were substantiated’. 138 Mr Piercey further noted that Allegation Two had been proven on the balance of probabilities, but he had not formed a view in relation to Allegation One or Three as to whether the conduct had actually taken place.139
[91] Mr Willner appears to have responded to the Outcome Letters. Ten paragraphs of that response outlined Mr Willner’s dissatisfaction with the procedural aspect of the investigation. In short, that dissatisfaction extended to issues such as:
a) not having been provided with the particulars of the allegation – as requested by his lawyers;
b) confusion created by the investigation as to whether allegations related to Mr O’Connell or Mr Sivwright, therefore making it difficult to respond;
c) some allegations being raised for the first time in the investigation interview, therefore not allowing enough time to respond and additional information provided being vague and generalised;
d) the timing of the investigation over the Christmas period and the heavy handed approach adopted by CBH during the investigation – including not providing full particulars of investigations;
e) unjustified departure from CBH’s Workplace Harassment Discrimination Bullying and Equal Employment Procedure – noting that the nature of the complaints made were of insufficient seriousness for CBH to depart from the policy of employees resolving the issue between themselves and escalating to an immediate supervisor if the dispute is unable to be resolved;
f) two other instances of bullying at CBH which had either not been dealt with or, if dealt with, had been done so informally; and
g) comments had been made openly by a newly appointed supervisor that there were ‘too many old people and it was time to get some new blood in’. 140
[92] Mr Willner identified in his response that two of the allegations had not been made out and that the only allegation substantiated was Allegation Two, which alleged a failure to treat others with courtesy, dignity, and respect. Mr Willner noted that while there were two examples of such conduct set out in the initial letter, the Outcome Letters only referred to the example of ignoring Mr O’Connell. Concerning that conduct, Mr Willner stated that during the interview with the Investigator, the Investigator had made vague reference to five examples of where it had been alleged that the allegation was made out, and that it was unclear to Mr Willner whether he had ignored Mr O’Connell or Mr Sivwright. Mr Willner noted that as none of the examples provided by the Investigator had been listed in the Outcome Letters, he assumed that they had not been substantiated. 141
[93] In his response, Mr Willner also drew CBH’s attention to the lack of repeated behaviour that could constitute ‘bullying’ and that no particulars had been provided as to how a failure to say ‘good morning’ to one employee, on one occasion, had negatively impacted the wider CBH maintenance team. 142 Mr Willner continued:
Even assuming CBH relies on the additional allegations that were obliquely referred to during the interview, two occasions in which I am alleged to have turned my chair/back away from an employee and not to have said good morning to an employee over an 18 month/3.5 year period (depending on which employee the investigator was referring to), and one occasion when I am alleged not to have taken someone with me to get coffee, does not amount to bullying and does not constitute “serious misconduct”. 143
[94] In response to the specific allegation of ‘making Dale Sivwright and Garnet O’Connell feel unwelcome in the smoko room, including ignoring Mr O’Connell when he said ‘Good morning’, Mr Willner set out in his response that the following allegations had been put to him:
a) I had made Dale Sivwright feel unwelcome in the smoko room. No further particulars were given other than this general statement. The investigator did not provide me with particulars of the dates or time when this was alleged to have taken place or indeed any particulars of how I was alleged to have made Dale Sivwright feel unwelcome.
b) I had made Garnet O’Connell feel unwelcome in the smoko room, presumably including by ignoring him when he said good morning, although the investigator did not specifically say this in the interview.
c) I had turned my chair to turn my back on Garnett O’Connell together with a group of other people (again these people were not identified by the investigator) and ignored him when he said ‘good morning’.
d) I had made Garnet O’Connell feel unwelcome in the smoko room when everyone went quiet and me and unidentified others turned their back on him so that he or Mr Sivwright/Dale was excluded. No further information was provided including the date or time this was alleged to have taken place and indeed it was not clear to me whether the investigator was asking whether I had excluded Garnet O’Connell or Dale Sivwright.
e) After the pre-start meeting I went into the workshop together with others and when Garnet turned his back to pick up his tools, the other group of us (the members of this group were again not identified by the investigator) disappeared and went into town in the truck to have coffee leaving Garnet O’Connell in the workshop. No date or other particulars were provided by the investigator. 144
[95] Mr Willner outlined in his response that it was not clear from the Outcome Letters whether the finding made by the Investigator related only to the allegation that he did not say ‘good morning’ to Mr O'Connell or, whether it also related to the other allegations about turning his back on Mr O'Connell, going for coffee without Mr O'Connell, or generally making Mr O'Connell and Mr Sivwright feel unwelcome in the smoko room.
[96] In his response, Mr Willner noted that he had informed the Investigator that he denied any knowledge of the abovementioned events (paragraph 95) taking place. 145
[97] While the content of Mr Tainsh’s response to the Outcome Letters is not detailed, it mirrors that of Mr Willner’s response except for the references to personal circumstances. Therefore, Mr Tainsh’s response is not replicated for the purpose of this decision. 146 It is uncontroversial that both former employees were assisted by their legal advisor in preparing their correspondence.
[98] While the Applicants were advised on 8 January 2021 that the findings of the investigation may result in termination of their employment, both declined CBH’s direction to attend a disciplinary meeting and instead provided the aforementioned written response.
[99] By letters of 20 January 2021, Mr Piercey wrote to the Applicants acknowledging receipt of their responses and that he had carefully considered the matters raised in the responses. Mr Piercey responded to the Applicants in the following terms:
Much of your response comprises additional responses, or reiterates your previous responses, to the allegations put to you in the course of the Investigation.
As was outlined in the Investigation Outcome Letters, the Investigation has been finalised and findings have been made against you. CBH is satisfied you had ample opportunity to provide your responses during the Investigation and those were properly considered by the investigator.
In any event, having considered your supplementary responses to the allegations, I am satisfied they would not have changed the Investigation outcomes and findings against you.
I have also considered the fact that during the Investigation, in most cases, you completely denied the allegations and only provided the supplementary detail in your Response when you were informed findings had been made against you and that CBH was considering disciplinary action against you.
In your Response you assert that failing to say good morning to Mr O’Connell on one occasion and turning your back on him on two occasions is not repeated or serious misconduct. To clarify, in respect of Allegation 2, it was found that you repeatedly made Mr Sivwright and Mr O’Connell feel unwelcome in the smoko room, including ignoring Mr O’Connell when he said good morning. This allegation was put to you in its entirety during the Investigation and you gave a complete denial, stating you had ‘never’ engaged in the conduct alleged. Your Response misrepresents the finding. 147
[100] Mr Piercey concluded in the letters of 20 January 2021 (Letters of 20 January 2021) that the Applicants’ conduct had negatively impacted the maintenance team, amounted to bullying and harassment, and was in breach of contractual obligations and the Code of Conduct. 148 In addition, Mr Piercey expressed his disappointment that no contrition or acknowledgement of the findings had been demonstrated by either.149 Mr Piercey continued:
[Y]our misconduct as proven in the Investigation and your lack of remorse or responsibility for that misconduct has not provided me with any confidence you will not engage in the same misconduct again in future. 150
[101] Having notified the Applicants that his preliminary view was that their employment should be terminated with payment in lieu of notice, Mr Piercey noted that before making a final decision, both employees were invited to provide any further information for CBH to consider. 151
[102] In cross examination Mr Piercey was taken to the Letters of 20 January 2021, particularly the paragraph starting ‘[Y]our misconduct as proven’ and was asked whether he was referring to each of Allegation One, Two and Three in respect of Mr Willner. Mr Piercey replied:
-I am - it is proven on the - for allegation 2 and allegation 1 is not substantiated, so it would be predominantly allegation 2, bearing the fact that allegation 1 and 3 had not been substantiated, but there was no cause to doubt the evidence provided by the complainants. 152
[103] When asked specifically what his state of mind was as to Allegation One in the case of Mr Willner, the following passage was recorded:
My state of mind is that even though it’s not proven there is potential that that could have occurred. 153
Potential? – Correct.
And what does that mean, so far as your characterisation of Mr Willner’s conduct as being misconduct? – So, there’s no cause to doubt the evidence by the complainants as the investigator has reported it.
So, was it your state of mind look at – go back to allegation 1 if you need to in the letter of 8 January 20 – as at 20 January was it your state of mind that the facts alleged in allegation 1 had in fact happened or not? – The facts that hadn’t been proven were there, but my state of mind that it could have been, just it was not substantiated.
And did that mean allegation 1 was part of the misconduct that you referred to in your letter of 20 January? – That would be a big possibility as far as I can recall.
Is the same true of allegation 3, which is in the same category, I think you told us earlier, as allegation 1? – As far as I can recall, yes. 154
[104] Mr Piercey was similarly taken in cross examination to the Letters of 20 January 2021, which he had provided to Mr Tainsh. Mr Piercey was again asked:
And as at 20 January were you positively persuaded in your own mind as to the truth of allegations 1, 2 and 3 in the case of Mr Tainsh?---At this point in time, yes, as in allegation 2 it's been proven, and allegation 1 and 3, even though they're not substantiated, investigator had no cause to doubt the evidence by the complainants.
And so far as Mr Tainsh was concerned, as at 20 January you had exactly the same state of mind as you had had in relation to the three allegations against Mr Willner, namely in Mr Tainsh's case as in Mr Willner's case all three allegations constituted misconduct?---As far as I can recall. 155
[105] On 22 January 2022, Mr Willner emailed Mr Piercey setting out amongst other things:
However I do not accept that I engaged in the conduct that has been alleged against me, as far as it is possible to respond to an allegation that has been expressed in such generalised and abstract terms. Further, contrary to your email, it was not put to me during the interview that this was conduct that I engaged in regularly. Two specific instances were put to me which I denied. No time of day, date or circumstances were provided which put the alleged conduct in context and there was no suggestion that it happened on multiple occasions.
In any event, even if the allegations were true, they do not constitute a valid reason for dismissal, and dismissal would be a harsh and disproportionate penalty.
I am sorry if either Garnet O’Connell or Dale Sivwright felt unwelcome in the smoko room as a result of something I did. I am not aware that I did anything to cause either of them to feel that way and did not do it intentionally.
I am more than happy to give an undertaking to comply with CBH policies in the future, as I have done in the past, and I am happy to attend to any training. I do not consider that I will have any difficulty working in a professional manner with Garnet or Dale or anyone else at CBH in the future and I will continue to treat everyone with courtesy and respect, as I have done in the past.
[106] Similarly, on 22 January 2022, Mr Tainsh emailed Mr Piercey setting out amongst other things:
Notwithstanding that I still do not accept that I engaged in the conduct alleged, to the extent that it is possible to address an allegation that is framed in such vague and subjective terms. Further, contrary to your email, it was not put to me during the interview that it was asserted that this was conduct that I engaged in regularly. Two incidents were put to me for which no time of day, date(s) or circumstances were provided to put either of those alleged incidents in context, although I specifically asked the investigator if he could provide that detail during the
investigation interview.
In any event, even if the allegations were true, they do not constitute a valid reason for dismissal, and dismissal would be a harsh and disproportionate penalty particularly given my exemplary 12.5 year record of employment at CBH.
I am of course deeply sorry if Garnet O’Connell or Dale Sivwright felt unwelcome in the smoko room, but I am not aware that I did anything to cause either of them to feel that way and if I did it was certainly not intentional. I will have no difficulty treating either of them with dignity, courtesy and working alongside Garnet professionally going forward and am happy to give an undertaking to comply with CBH’s policies as well as attend any training. 156
[107] By letters of 5 February 2021, Mr Piercey confirmed that he had thoroughly and properly considered each of the additional factors raised in both Mr Willner’s and Mr Tainsh’s emails. However, did not consider that those matters mitigated the seriousness of their action or changed his view as expressed in the Letters of 20 January 2021. In respect to Mr Tainsh, Mr Piercey drew attention to the following:
a) Mr Tainsh attacking the investigation process and failing to take responsibility for his action;
b) that Mr Tainsh expressed remorse after he was advised that CBH was disappointed in his lack of remorse;
c) Mr Tainsh’s email dated 22 January 2021 did not address concerns about the safety and welfare of others should he engage in similar misconduct again in the future;
d) Mr Tainsh’s blatant disregard for the investigation process including the requirements of his suspension and failure to notify Mr Piercey of his intended interstate travel such that Mr Piercey considered he could not have confidence in Mr Tainsh’s promise that he would follow CBH policies and procedures going forward; and
e) that Mr Tainsh had participated in Code of Conduct training on 28 May 2019 and was aware of his obligations regarding appropriate workplace behaviour, and this together with being a senior member of Albany Maintenance Team meant he ought to have known the impact that his behaviour would have on others. 157
[108] Mr Piercey concluded that based on Mr Tainsh’s failure to accept responsibility for his actions or acknowledge the impact of those actions on others in the workplace, he could not be satisfied that Mr Tainsh’s behaviour would not reoccur. And it followed that the trust and confidence to perform duties safely and in line with CBH’s values was no longer present. 158
[109] The letter of 5 February 2021 to Mr Willner was so similar in its terms to Mr Tainsh’s letter that it does not warrant repeating.
[110] At this juncture it is relevant to point to the email response Mr Babun provided to Mr Piercey on 22 January 2021. That email addressed the issues raised in Mr Piercey’s letter to Mr Babun of 20 January 2021, which was titled ‘Notification of Preliminary View’. Mr Piercey’s letter to Mr Babun of 20 January 2021 was so similar in its terms to those provided to Messrs Willner and Tainsh, that again, I have not repeated its contents. The relevance of the document arises from the Applicants’ assertions that CBH afforded them differential treatment in comparison to other employees. Mr Babun, who, while clearly implicated in the workplace bullying, nevertheless retained his job. It therefore proves relevant to detail the email response of Mr Babun dated 22 January 2021:
Dear Will,
I appreciate the opportunity for a response to your preliminary decision, before making a final decision that will affect my future. Firstly, I would like to acknowledge the inconvenience that this investigation has caused you, the company and all parties involved.
During our meeting on the 13th of January, I wished to impress on you and Nadine, that I am a decent person; that I have had a clean record throughout my working life. If I am given a chance to return to work, I wish to assure you; I will use my training gained in the military and CBH and give you my undertaking that I will continue to strive in following CBH’s codes of conduct and policies, be courteous, polite and welcoming.
I have valued my role at CBH during the 13 years I have worked there and consider that I have made a valuable contribution to the company during that time. I have been proud to say to family and friends, that I am a maintenance electrician at CBH. During my service, I have made many friends within our company. I am saddened to read that you have lost trust and confidence in me, to protect the health and safety of the maintenance team and all other CBH employees.
Until your initial letter, I was unaware that Dale and Garnet felt unwelcome in the smoko room. I am very sorry they felt this way. I did not intentionally or maliciously do anything to make them feel unwelcome. If I am given the opportunity to return, I know that I will be able to work with them and carry out my duties with the utmost of care to safety and professionalism.
I feel that terminating my employment will be a disproportionate response to the allegation, with unreasonably harsh consequences as a penalty for my family and myself to carry. I am willing and prepared to have a dialogue to identify ways that will allow you to re-gain your trust and confidence in me.
I would therefore appreciate it, if you could please reconsider your preliminary decision to terminate my employment, as working at CBH is a very important part of my life.
Yours sincerely,
Paul Babun 159
1.6 Policies and Procedures
[111] Clause 2.7 of the Harassment, Discrimination, and Bullying Procedure set out the ‘Complaint Resolution Process’. 160 The process in relation to the resolution of complaints was set out as follows:
Step | Instruction |
1. | Complaint is raised either: a) Informally, to the employee’s manager or the Group Manager – People & Performance; or b) Formally, to the employee’s manager, a more senior manager with the division, the employee’s Human Resources Advisor, the Employee Relations Manager or the Group Manager – People & Performance via the Harassment, Discrimination, Bullying – Formal Complaint Form |
2. | If the complaint is informal, the person who has received notification of the complaint shall act as an intermediary between the parties with the aim of reaching an agreed solution. Harassment – Information for Managers is a guide to assist in the resolution of such issues. |
3. | In cases where conciliation is inappropriate, has proved unsatisfactory or the matters raised are serious and involve more than two employees (such as witnesses to alleged behaviour), an investigation may be undertaken. In such instances, an investigation will take place as follows: a) The investigation will usually be conduct by the employee’s manager with support from the Human Resources team. In circumstances where it is not appropriate for the manager to conduct the investigation, a representative from the Human Resources team, the one up manager or the Company’s Investigation Officer may lead the investigation. It is the role of the person conducting the inquiry to discuss the matter with the complainant and others who have been involved, to examine the substance of the allegations(s). Template and processes for investigations can be located in the Employee Management and Discipline Procedure. b) At the conclusion of the investigation, a report will be prepare which may include: c) Employees directly involved in the investigation may be stood with full pay (based on ordinary hours and rates) until investigation is concluded. d) Any disciplinary action, including termination of employment should be obtained in accordance with the Employee Management and Discipline Procedure. |
[112] The Complaint Resolution Process was accompanied by a set of guidelines at clause 2.8 of the of the Harassment, Discrimination, and Bullying Procedure which provided:
The following principles shall be observed through the implementation of any complaint procedure relating to harassment, discrimination and/or bullying and shall be observed by all responsible persons:
Step | Instruction |
1. | Confidentiality must be maintained and each party involved in the process (the complainant, respondent, managers, supervisors and witnesses) mush sign the Harassment, Discrimination, Bullying – Confidentiality Form. |
2. | The principles of procedural fairness shall apply at all stages of the formal complaint resolution process. Persons responsible for investigating and resolving formal complaints have a duty not to be affected by bias or conflict of interest and must act fairly and impartially. Persons against whom formal complaints have been made shall be given a fair opportunity to provide a response to the allegations. To enable this, the respondent shall be given reasonable details of the complaint. |
3. | Formal complaints shall be investigated promptly, involving a few people as possible. Parties to a formal complaint shall be entitled to receive advice and support as appropriate and be kept informed of the progress of the complaint. |
4. | The preferred method of resolution shall be by discussion, raising awareness, mediation and a process of conciliation which aims not to make a finding or to allocate blame but to assist the parties to reach agreement on an acceptable outcome. |
5. | It is recognised that conciliation may not be appropriate if a party to a complaint holds a reasonable belief that discussion is likely to provoke victimisation, further incidents of similar behaviour or unnecessary distress. |
6. | A process for formal investigation shall be available for cases where conciliation is inappropriate or has proved unsatisfactory. |
7. | Parties using these procedures must not be victimised on that account and have the right to take action if they believe that victimisation has occurred. |
8. | Appropriate steps shall be taken to ensure harmonious working relationship during and after the procedures. |
9. | Nothing in this document prevents the right of an individual from seeking legal redress. |
2 Submissions
2.1 The Applicants’ submissions
[113] The Applicants observed that they had been dismissed, essentially, for making two employees ‘feel unwelcome in the smoko room including ignoring Garnet O’Connell when he said, “Good morning”’. They submitted that this allegation had been denied and thereafter found proven only after an investigation process that saw them both suspended for two months over the Christmas and New Year period. Both had long histories with CBH and unblemished disciplinary records. It followed, according to the Applicants, that their dismissals were the epitome of harsh, unjust, and unreasonable.
[114] As to whether there was a valid reason for their dismissal, the Applicants submitted that while they denied making two employees feel unwelcome, including ignoring Mr O’Connell, even if the allegation could be proven, it would not constitute a sufficient reason for dismissal. Further, their denial of the allegations, in circumstances where basic particulars were sought and never given, was entirely reasonable and not something which would constitute or contribute to a valid reason relating to their conduct.
[115] The Applicants advanced two principle submissions on valid reason: (a) Mr O’Connell’s evidence should not be accepted because the conduct said to give rise to the ‘valid reasons’ did not occur; and (b) even if Mr O’Connell’s evidence was to be accepted, the reasons were nonetheless not ‘sound, defensible, or well founded’ but rather ‘capricious, fanciful, spiteful or prejudiced’, such that they could not be regarded as ‘valid reasons’ for the purposes of s 387(a).
[116] The Applicants expressed that the reason for their dismissal appeared to be a sham to drive renewal at CBH. Observing that a supervisor (Mr Moolman) had made derogatory comments about the age of some of the employees and that, shortly before the Applicants were suspended, a Mr Chris Harrop was approached by a manager to apply for one of several electrician roles that would be coming up in the next few weeks.
[117] In their closing submissions the Applicants stated that they had developed the distinction between a valid reason on the one hand and a harsh dismissal on the other. The Applicants reasoned that even where a valid reason for a dismissal existed, the dismissal could nevertheless be harsh having regard to the gravity of the conduct and the consequences of the dismissal for the personal and economic situation of the dismissed employee.
[118] So far as the gravity of the conduct was relevant, the Applicants submitted that even where a valid reason existed, it could nonetheless be ‘harsh in its consequences for the personal and economic situation of the employee’ and because it was ‘disproportionate to the gravity of the misconduct in respect of which the employer acted’. 161
[119] With respect to the procedural points of the case, the Applicants claimed that they were provided with a rolled-up allegation in general terms. Whilst they sought particulars to understand the reason or to provide a meaningful response to it, sufficient particulars were not provided.
[120] Mr Tainsh pointed to the ‘leaving allegation’, observing that having asked for a date and a time, the Investigator was said to have replied, ‘if you’re saying that it didn’t happen in any instance then a date and time isn’t going to make any difference, is it?’. According to the Applicants, Mr Tainsh correctly responded that ‘it could make a difference. If Garnet had been given a different job to do from what we were doing then that would be a difference, wouldn’t it’. The Investigator was said to have acknowledged this and then moved to the next allegation.
[121] The Applicants raised that neither of them had been provided with written notice of the ‘leaving allegation’, the ‘gun allegation’ or in Mr Tainsh’s case the ‘toy guns allegation’ – but instead were first told about them in the interview with the Investigator.
[122] It was the Applicants’ view that in cross examination it became evident that Mr Piercey took into account and found Allegations One and Three proven – notwithstanding the language of the Outcome Letters. The Applicants submitted that the Outcome Letters clearly indicated that Allegations One and Three were not substantiated – and by implication, at an end. Accordingly, the Applicants submitted that the opportunity to respond afforded by those letters was not a genuine or sufficient one. The Applicants argued that what had been demonstrated was a denial of procedural fairness of the highest order. Furthermore, the Applicants submitted that whether that denial related to the ‘valid reasons’ now raised was unclear, but even if it did not, such conduct should be taken into account under s 387(h).
[123] Further addressing s 387(h) of the Act, the Applicants pressed that they had been afforded differential treatment. Observing that five employees were subject to the very same investigation and the same allegations were substantiated against all, Mr Babun and Mr Young had not been dismissed. It was the Applicants’ opinion that in cross examination, Mr Piercey demonstrated that there was no proper basis for distinguishing between the employees.
[124] As to the impact on the personal circumstances of the Applicants, they identified that their employment was situated in an isolated regional town in Western Australia, both were in their fifties, there were limited employment opportunities and neither could leave that town, or work away for periods, given family circumstances. The Applicants also traversed the impact upon Mr Tainsh’s health, which was said to have arisen from the eight week investigation and disciplinary process – including his admission to hospital and Mr Willner’s experience of finding the process stressful, unfair and upsetting.
[125] While Mr Rogers was said to have cast aspersions on the work ethic and performance of the Applicants, the Applicants submitted that the better evidence on this issue was the content of contemporaneous and recent performance reviews undertaken by Mr Rogers for each of the Applicants. In cross examination Mr Rogers had accepted that the performance reviews were accurate, complete, fair and considered.
[126] Falling within the scope of the Applicants’ submissions on s 387(h) was their argument about Mr Piercey not applying Step 4 of the Complaint Resolution Guidelines. The Applicants pressed that had Step 4 been applied, disciplinary consequences may have been averted. Step 4 was, in the Applicants’ view, manifestly designed to achieve this purpose of averting disciplinary action. The Applicants considered that Mr Piercey’s evidence as to why he chose not to proceed with Step 4 was based on a view that was not reasonable to hold. Namely, that Mr Piercey considered that the application of Step 4 would provoke victimisation and further incidents of similar behaviour or unnecessary stress.
[127] In reply to CBH’s contentions, the Applicants raised 20 further points. The first, contrary to CBH’s submissions, the Applicants convincingly demonstrated their indifference to any idea of competition between the two electrical teams. The Applicants submitted the point was an important one because it undermined a fundamental, indeed a necessary, element of CBH’s case theory, namely, that the motive for Applicants’ conduct was that they felt slighted by Mr O'Connell's preference for the other team. The Applicants submitted that there was no evidentiary support for the proposition. Noting that they had denied the contention and the proposition was illogical because, if they were wounded by Mr O'Connell's preference for the other team, it would not have been a logical response to take steps to keep him within their team and treat him as though he were not a member of it.
[128] Insofar as Mr Babun, Mr Golling and Mr Young gave evidence in favour of the Applicants motivated by loyalty, the Applicants argued that the contention should not be accepted. The Applicants pressed that Mr Babun, Mr Golling and Mr Young came forward against their own interest to give evidence in favour of the Applicants’ version of events, which, said the Applicants, was a powerful reason to accept their evidence. Further, the Applicants contended that the evidence of Messrs Babun and Golling was equally capable of being seen as a demonstration of their commitment to the truth.
[129] The third point addressed was that Mr Connell was not entirely the exemplary apprentice that CBH’s evidence sought to portray him to be. The Applicants drew attention to their evidence and the evidence of Messrs Babun, Golling and Young. They pressed that an important element in CBH’s submissions was CBH’s criticism of any criticism concerning Mr O'Connell, without any recognition that those criticisms of Mr O'Connell addressed the positive case CBH had made concerning his conduct.
[130] The fourth point turned to what the Applicants termed as a ‘remarkable submission’ made by CBH, that Mr Babun had engaged in some breach of his duty of fidelity to CBH by seeking to look at documents held by a Mr Jeffrey. Mr Babun's evidence was that he had a perfect right to look at those documents and, according to the Applicants, was never convincingly refuted.
[131] Next, and this is the fifth point, the Applicants drew issue with the descriptions of the conduct alleged against the Applicants, namely conduct that ostracised Mr O'Connell. The Applicants made the point that the proper focus in the case was on the evidence that CBH tendered about the conduct in question, the objective accounts of the conduct alleged, rather than the characterisation that CBH had repeatedly sought to give that conduct. The Applicants submitted that this distracted from a proper appreciation of the objective accounts of that conduct.
[132] Continuing with the fifth point, the Applicants said that the focus of CBH’s submissions had been on its case theory rather than its actual evidence, leading to a persuasive indication of the weakness in that evidence. The Applicants argued that CBH had attempted to paper over its weakness.
[133] Moving from the fifth to the sixth point, the Applicants referred to submissions about the adverse psychological impact of the alleged bullying conduct on Mr O'Connell. The Applicants submitted that such evidence ought not to be accepted. Expanding upon the point, the Applicants observed curious features about the evidence that Mr O'Connell gave about the alleged psychological impact on him of the alleged conduct. The Applicants pointed to the evidence having not been corroborated and supported by anyone else, and to the fact that it was described in Mr O’Connor’s oral evidence in terms that were markedly different than the way in which he described it in his witness statement, a statement prepared in circumstances in which it ought properly to be regarded as his complete account of the evidence he wished to give.
[134] The Applicants specifically referred to the additional circumstance in light of the way the alleged adverse psychological impact of the alleged bullying was addressed in CBH’s closing submissions. It was, said the Applicants, suggested that there was a basis upon which to find that the psychological impact had extended beyond the time that Mr O'Connell worked with the Applicants, for a period of seven months.
[276] In relation to the remaining employees, including the Applicants, the evidence supports a finding that Mr Piercey undertook a careful analysis not only of the conduct as found by the Investigator, but also of the differences he could discern in the way in which the employees engaged in the disciplinary process.
[277] Mr Piercey sent to all five employees (Messrs Tainsh, Willner, Babun, Lamont and Young) the letters dated 8 January 2021 in each instance (known as the Outcome Letters). 254 It was evident from a reading of the responses to the letters of 8 January 2021 by Messrs Tainsh,255 Willner,256 Babun,257 Lamont258 and Young259 that for the most part they were in substantially identical terms hence the inference arising that they had been provided by the legal representative of the employees notwithstanding assurances, such as that of Mr Young, that the response was his own words.
[278] Mr Piercey then asked each of the employees to meet with him to discuss the disciplinary findings. According to CBH only Mr Babun presented in person. However, the interaction was limited to Mr Babun hand delivering his written response in the meeting. The other employees all responded only by sending in responsive written documents.
[279] Mr Piercey then responded to each of the employees with a letter that had as its subject line, ‘"[N]otification of preliminary view’. The letters to the Applicants, Mr Babun and Mr Lamont were dated 20 January 2021, and the letter to Mr Young was dated 5 February 2021. In those letters Mr Piercey addressed the objections raised by the employees in respect of procedural matters. that had been raised. He also outlined to each employee his preliminary view as to the appropriate disciplinary outcome. Importantly, in each case his preliminary view was that termination of employment was warranted. 260
[280] On receipt of those letters each employee knew that they may be dismissed. The reaction of Mr Tainsh was to send a short email. 261 CBH pressed that Mr Tainsh made no admission of misconduct on his part and he continued to allege procedural unfairness.
[281] Mr Willner also sent a short email to Mr Piercey. 262 It was in similar terms to that of Mr Tainsh’s email response, although Mr Willner did say that he would give an undertaking to comply with CBH policies in the future, whilst not admitting to any departure from those policies in the past.
[282] Mr Babun's response was somewhat different in terms to that of Mr Tainsh and Mr Willner. 263 Mr Babun expressed appreciation for the opportunity to respond; acknowledged the investigation had been inconvenient for CBH as well as the individual employees, expressed that he is a decent person, to use his words, and that if given the chance to return to work, he would deploy his military training and his training at CBH to strive to follow its codes and policies, and to be courteous and polite and welcoming.
[283] CBH submitted that it was very easy to understand on reading that letter that it was a letter of a different quality to the letters of Mr Tainsh and Mr Willner, and that it would have gone further to instil in Mr Piercey at least some confidence that Mr Babun may not reoffend, thereby putting the mental health of employees at CBH at risk.
[284] In his Decision Paper 264 Mr Piercey detailed the reasons for reaching his preliminary view to terminate the employment of all employees. For Messrs Tainsh, Willner, and Babun and Young those reasons were the same and included:
Risk to safety and welfare of employees and negative impact on wider Albany maintenance team Loss of trust and confidence (lack of cooperation, transparency, refused to participate in face to face meetings) 265
[285] Under a section titled ‘Further considerations’, Mr Piercey outlined the following about Messer Tainsh, Willner, Babun and Young:
Paul Babun
• Offered to meet with CBH to identify how to regain trust and confidence.
• Open for dialogue to regain trust in himself and maintenance team,
• Not named as main instigator in investigation.
• Senior member of team
Peter Tainsh
• Non-compliance with (personal/annual) leave and stand down processes.
• Contempt with abiding with CBH policies.
• Letter appears to have been overly edited with focus on denying action.
• Senior member of the team.
• Not willing to meeting and work through any issue.
Markus Willner
• Completed EEO required training
• Not remorseful for actions in letter.
• offer to meet and work out any strategies to return.
• Denies any wrongdoing or attacks the Investigator.
• Letter appears to have been written for him with focus on denying actions.
• Apprentices ongoing risk to wellbeing.
• Senior team member.
Andrew Young
• Comments about Lyndon coming around his place.
• Contractor no longer an imminent risk.
• Senior member of the maintenance team.
• Respected member of the maintenance team.
• Investigator’s view of his credibility in preliminary investigation (did not present as nervous, appeared to provide genuine, open, honest answers)
• Frustration at receiving particulars of allegation 3 late / incomplete particulars partially explains tone in letter (angry in sections)
[286] Specific matters raised by each of the abovementioned employees were also covered in the Decision Paper. These matters extended to personal and family circumstances, length of service, disciplinary history and medical issues. Mr Piercey had, in addition, included a column titled ‘Credibility’, which for Mr Tainsh and Mr Willner read:
Letter is aggressive and shows contempt for the process and outcome.
Not sounding genuine in letter. 266
[287] Regarding his appraisal of Mr Babun’s letter, Mr Piercey wrote, ‘[G]enuine in preliminary letter; Tone of letter is remorseful; Willingness to follow codes of conduct’. 267 Similarly, for Mr Young the assessment was ‘[G]enuine in preliminary letter. Tone shows remorse in letter. Willingness to “Treat others as you yourself want to be treated”’.
[288] CBH led evidence that Mr Piercey’s main concern when analysing the responses of the employees was to consider whether he was able to trust them not to misconduct themselves in such a way in the future. His evidence shows that he asked himself who he trusted to create a safe working environment, aware that exclusionary behaviour had the potential to cause psychological distress and illness.
[289] Mr Piercey’s approach does not appear unreasonable. His reasoning in this respect was sound and grounded on the evidence before him which allowed the cases of the Applicants and their colleagues to be distinguished. To discern the treatment that would be afforded to each employee in the group, Mr Piercey contemplated the conduct they had engaged in whether directed at Mr O’Connell or Mr Sivwright, their personal circumstances, conduct during the investigatory process (noting that Mr Tainsh took it upon himself to depart interstate whilst ‘stood down’ or rather instructed not to attend work), responses provided and whether he could trust those employees to create a safe working environment.
[290] The Applicants pressed that it was wrong to take into account as a factor favouring dismissal an employee's continuing maintenance of innocence and what the Applicants said was well-founded objections about the procedural fairness of the process that led to the decision to dismiss them. However, there were a culmination of factors that led to Mr Piercey’s decision to dismiss the Applicants, and in all the circumstances, where it had been found that the Applications had engaged in the conduct expressed in Allegation Two, it was not unreasonable for Mr Piercey to have formed the view that there was a lack of contrition.
[291] In their closing submissions the Applicants referred to having made apologies in their responses to Mr Piercey dated 22 January 2021, if Mr O’Connell and Mr Sivwright felt unwelcome in the smoko room. It was the closing paragraph of their respective emails, emails of which consisted of four paragraphs that preceded the closing paragraph. Taken out of context one might be forgiven for considering the Applicants’ reflected about what had occurred.
[292] However, Mr Piercey’s evaluation of the totality of those emails of 22 January 2021 does not, in my view, appear misplaced, albeit, while Mr Piercey may have considered the content of Mr Willner’s and Mr Tainsh’s letter ‘aggressive’, perhaps a preferable term would have been ‘blunt’ or ‘direct’.
[293] Mr Piercey was a strikingly unexcitable witness who appeared measured in every respect. His decision to issue first and final written warnings to Mr Babun and Mr Young in contrast to dismissing the Applicants does not render the dismissals of the Applicants unfair, unreasonable or unjust. I am not satisfied that the Applicants were afforded differential treatment.
[294] However, it should not be thought that Mr Piercey’s reasoning process was inerrant. In forming his decision to dismiss the Applicants, the evidence supports a finding that when considering if the Applicants had engaged in misconduct, Mr Piercey acknowledged that it was a ‘big possibility’ that he took into consideration that the Applicants’ misconduct arose not only from Allegation Two which had been substantiated but Allegations One and Three which were not substantiated. 268 While Mr Piercey repeatedly acknowledged that Allegations One and Three had not been substantiated, he identified several times that the Investigator had stated that there was no reason to doubt the evidence of the complainants.
[295] Undoubtedly, in my view, Mr Piercey candidly illuminated his decision making process acknowledging that there was a big possibility that he took into account conduct that was not substantiated (Allegations One and Three) and that when referring to the Applicants’ conduct being serious, it was by reference to the conduct of all three allegations.
[296] Notwithstanding Mr Piercey’s concession about his thoughts during the decision making process, and how he interpreted the word ‘serious’, his evidence does not detract from CBH having acted upon a valid reason for the termination of the Applicants’ employment, having provided notification of the same and provision of time to meaningfully respond.
[297] I have noted that the Applicants assert that they were not provided with the opportunity to respond to Allegations One and Three albeit the conduct stated in those allegations was relied upon by Mr Piercey in forming his decision to dismiss. However, as has been observed, ss 387(b) s387(c) and their respective references to ‘that reason’ and ‘any reason’ are referable to the ‘valid reason’. 269 The Act does not compel a respondent employer to ‘notify of that reason’ or give ‘an opportunity to respond to any reason’, rather they are matters to be taken into account under s 387 of the Act.
[298] I am satisfied that Mr Piercey’s evidence has not rendered the termination of the Applicants’ employment unjust or unreasonable. That there was a valid reason for the Applicants’ dismissal remains undisturbed. That Mr Piercey acted upon that valid reason after he had provided the Applicants with notification of the detail of CBH’s concern about their conduct, and thereafter giving ample opportunity for the Applicants to meaningfully respond, also remains unchanged. While it could be said that Mr Piercey’s through processes may have indicated that a procedural flaw was made, it was not fatal to the procedure undertaken by CBH.
[299] The procedure adopted was fair and reflective of one that gave ‘a fair go all around’. It was reflective of a disciplinary process that would be undertaken by a large organisation with industrial relations resources – whether internal or external.
[300] Mr Piercey’s consideration of the conduct falling under Allegations One and Two does not render the ultimate decision to terminate the Applicants’ employment unjust. I am persuaded that Mr Piercey understood the findings that arose from the investigation, as much was evident in his persistent qualification that Allegations One and Three had not been substantiated, and that in all of the circumstances the Applicants’ dismissals were not unjust.
[301] The Applicants submitted that the formulation of ‘harsh, unjust or unreasonable’ called for an assessment of the gravity of the conduct alleged as the valid reason and assessing the proportionality of the sanction of dismissal against that conduct, having regard to the fairness of the process leading to dismissal and the consequences for the employee.
[302] The Applicants continued that in the first step of this analysis, an appropriate and useful approach was to assess where in the scale of seriousness the ‘valid reason’ sits. 270 In this respect the Applicants referred to the single member decision of Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal271 (Goodall) where the Commissioner had adopted a specific approach in the consideration of the seriousness of the conduct, and on appeal the Full Bench upheld the line of reasoning adopted.272
[303] It is a truism that every case turns on its own facts, nevertheless the submission of the Applicants warrants detailing the reasoning they were referring to in Goodall:
Mr Goodall’s conduct in making the comments referred to in paragraph [35] above over the two-way radio was clearly inappropriate. In considering the gravity of that conduct, it is necessary to have regard to the nature of the comments, the circumstances in which the comments were made and who they were directed at. In particular:
(a) Mr Goodall swore when making the comments on the two-way radio system. However, Mt Arthur concedes that profanities are commonly used at the Mine and more generally throughout the mining industry. 33 The gravity of Mr Goodall’s conduct in swearing over the two-way radio is at the very low end of the scale of seriousness;
(b) Mr Goodall made a number of crude, lewd and sexist comments on the two-way radio system. He did so in an attempt to be entertaining to his work mates. For example, Mr Goodall made the statement “that book on 50 ways to eat cock” in relation to a chicken recipe book of which he is aware with the title “50 ways to eat cock”. Mr Goodall was attempting to be funny because he found the title of the cookbook to be humorous. Mr Goodall was engaging in what he regarded as banter and chat with a number of his work mates over channel 6 of the two-way radio system. They were stirring each other up and were seeking to be entertaining. Mr Goodall and his work mates exercised poor judgment in making such comments in the workplace. Their conduct in that regard was inappropriate and in breach of a number of Mt Arthur’s policies. Disciplinary action of some kind was warranted. However, I would not regard such conduct on a single day at a mine site as being at the high end of the scale of serious misconduct. Such conduct was towards the lower end of the scale of seriousness; and
(c) Mr Goodall’s comments over the two-way radio concerning Muslims were clearly inappropriate and in breach of a number of Mt Arthur’s policies. This is the most serious aspect of the inappropriate comments made by Mr Goodall over the two-way radio system. In fact, Mt Arthur submitted that the factor which swayed it to terminate Mr Goodall’s employment was not the making of lewd, sexist and crude comments, but the making of Islamaphobic comments. If Mr Goodall had directed his comments concerning Muslims to any particular employee or group of employees at the Mine, I would have regarded his conduct at the high end of the scale of seriousness. However, Mr Goodall did not direct his comments concerning Muslims to any person or group of people at the Mine. Mr Goodall was not aware of any Muslims working at the Mine, and he would not have made such comments if he was aware of any Muslims working at the Mine. His comments concerning Muslims represent an expression by him of his personal views. He should not have expressed such views at the workplace, particularly over a two-way radio system where up to about 100 employees and contractors at the Mine could have heard and potentially been offended by the comments, whether or not they were Muslim. In fact, at least two employees complained to Mt Arthur management about the inappropriate comments made over the two-way radio system during the Shift. No evidence was adduced as to which parts of the comments caused the complainants to raise their complaints with management, but the comments by Mr Goodall about Muslims could well have been the catalyst for the complaints. Employees and contractors are entitled to attend work and not be subjected to commentary by other employees of a derogatory nature about particular religions or races. I regard Mr Goodall’s expression of his own views about Muslims over the two-way radio during the Shift as being in the mid-range on a scale of seriousness.
[304] On appeal the plurality of the Full Bench concluded:
We consider there was room for a logical and rational person to adopt the Commissioner’s process of reasoning, and to reach the conclusion that he reached using this process of reasoning. The concept of comparing a case of conduct of a particular nature to other actual or hypothetical instances of conduct of a similar nature in order to assess its degree of seriousness is a well-known one. It is, for example, commonly used by courts in assessing criminal and civil penalties to be imposed, and is a process of logic that may be applied in sentencing for the most grave of criminal offences. It is also a familiar concept in the unfair dismissal jurisdiction. For example, in the Full Bench decision in B, C and D v Australian Postal Corporation the majority applied that process of reasoning in relation to misconduct in the form of bringing pornography into the workplace:
“[64] The nature of material that will come within descriptors such as “inappropriate”, “unacceptable” or “pornographic” and the like will present as a spectrum. The lines of delineation between appropriate and inappropriate or acceptable and unacceptable are not sharp because they are broad, even amorphous, terms in respect of which reasonable minds might differ. Emailing pornography to a friend or other willing recipient is objectively a less serious breach of policy than emailing pornography to unwilling recipients or for the purposes of harassment.”
[56] We do not consider that there is anything intrinsically different about inappropriate workplace comments which involve religious vilification which precludes the adoption of a comparative analysis approach in order to assess its seriousness. That is not to say this is the only process of reasoning to be used, but only that it is one approach that might be taken by a logical or rational decision-maker.
[305] The Applicants respectfully submitted that the allegations at issue in their case, if proven, were at the very lowest end of the scale of seriousness. They urged that one need only look at the conduct in issue in Goodall, to appreciate this.
[306] The Commissioner in Goodall, correctly, in the view of the plurality, undertook a comparative exercise, comparing a case of conduct of a particular nature to other actual or hypothetical instances of conduct of a similar nature in order to assess its degree of seriousness. The conduct in issue in Goodall involved using a two-way radio system inappropriately in breach of the employer’s policies – offensive conduct included homophobic and racist statements, including about identified employees. The offensive comments do not bear repeating, save to say the plurality on appeal did not consider the actual comparison made by the Commissioner illogical or irrational, concluding:
[57] Nor do we consider that the actual comparison made by the Commissioner was illogical or irrational. It is reasonable to conclude, for example, that for an employee to personally direct anti-Muslim comments at a fellow employee who is known to be of the Islamic faith is objectively more serious than the expression of anti-Muslim opinions to fellow employees who are known to hold similar views, even where that is done in a manner (as Mr Goodall did) where the opinions may be heard by other employees who may be offended by them, because in the former case there is likely to be both the intention and effect of degrading, belittling or humiliating a particular individual, while in the latter case such an intention and effect are less likely. A recent example of the postulated worst-case scenario in this analysis (in the context of racist, threatening and obscene comments) is the decision in Sayers v CUB Pty Ltd, where it was found that an applicant’s use of “offensive language and verbal abuse” including “an offensive, degrading and racial slur” towards another employee of Hispanic origin was found to constitute a valid reason for dismissal, and despite the fact that the applicant had 15 years’ service, an unblemished record and was remorseful, it was also found that his dismissal was not unfair. Permission to appeal against this decision was refused. Similarly in Seaman v BAE Systems Australia Logistics Pty Limited 15 years’ service, an unblemished record, remorse and severe financial and personal circumstances did not render the applicant’s dismissal for calling a colleague of Italian/Maltese extraction a “fucking nigger” on two occasions unfair.
[58] It is not suggested that reasonable persons undertaking this type of comparison would necessarily arrive at the same conclusion as the Commissioner. However it was available to a logical and rational decision-maker to reach that conclusion. It was not a capricious or arbitrary one.
[307] It is accepted that a single member is bound by Full Bench authority albeit they may consider the decision, or parts thereof, wrong. However, it remains that there is a clear duty to follow it. 273 As identified by the plurality, it was not suggested that a reasonable person undertaking the type of comparison engaged in by the Commissioner would necessarily arrive at the same conclusion as he did. Commissioner Johns at paragraph [90] of the appeal decision in Goodall observed in his dissent, that several of the Commissioner’s findings were not findings that a logical and rational person could reach.
[308] Returning to the case at hand, the application before me and the factual matrix in which it sits does not fit squarely with the factual matrix in Goodall, the two cases readily distinguishable. Further, it is a difficult and unenviable exercise to compare exclusionary behaviour directed toward an individual as against conduct where homophobic and racist comments are made over a radio audible to 100 employees, and thereafter judge that one type of conduct is worse or more serious than another. Arguably, both types of conduct exclude, whether explicitly or implicitly.
[309] However, the Full Bench on appeal in Goodall observed, as referred to above, that in circumstances where an employee personally directs anti-Muslim comments to a fellow employee known to be of that faith, this was objectively more serious because there was likely to be both the intention and effect of degrading, belittling or humiliating a particular individual. This contrasts to circumstances where the opinion is shared with fellow employees who are known to hold similar views, even where that is done in a manner (as Mr Goodall did in Goodall) where the opinions may be heard by other employees who may be offended by them. The reason according to the plurality was because such an intention and effect (degrading, belittling or humiliating) are less likely. 274
[310] The observation of the plurality on appeal in Goodall was that conduct with the intent and the effect of degrading, belittling, or humiliating is more serious – particularly when that conduct is expressly directed toward a person.
[311] Make no mistake, the conduct of the Applicants was directed toward Mr O’Connell, when they sought to effectively ignore him – the consequence, he felt unwelcomed in the smoko room, a place provided by CBH for its employees to socialise should they chose, when taking breaks, or attending pre-start. Mr Rogers gave evidence of observing Mr O’Connell effectively sitting in isolation – at a distance from the Applicants and Mr Babun. On saying ‘good morning’, no acknowledgement was forthcoming from the Applicants – the conduct intentional, the effect to isolate. To ignore a person, to effectively isolate them within the confines of the work environment, is to dehumanise that person. It is the withdrawal of the very connection or quality that humanity often relies upon – communication.
[312] While Mr O’Connell was an adult apprentice, it remained that there was a power imbalance between him and the Applicants because of his ‘apprentice’ status and lack of longevity in both the profession of electrician and with CBH. The evidence led shows that he was dependent upon the Applicants to provide instruction at times, to provide work, and to allow him to accompany them on jobs.
[313] I therefore cannot agree with the Applicants’ contention that nothing alleged in CBH’s case – even if Mr O’Connell’s evidence was to be accepted in its entirety, approached the level of seriousness of any of the conduct evaluated by the Commissioner in Goodall. To say that the conduct described in Allegation Two, is no higher than the very lowest end of the scale of objective seriousness is simply incorrect. The Applicants’ conduct was grave. It is for that reason that the disciplinary action meted was not disproportionate.
[314] As to whether CBH complied with the terms of its Harassment, Discrimination and Bullying Procedure, I am content that there was no departure from its terms. The matters raised to Mr Piercey were serious and an investigation was not only permitted but warranted in those circumstances. As to how the company went about conducting that investigation, sat with it. The language adopted within the content of the Harassment, Discrimination, and Bullying Procedure imbuing discretion to that end.
[315] I have taken account of the fact that both Applicants had a lengthy service with CBH and good employment records. I appreciate that Mr Tainsh was 55 years of age, had dependents and that there were court orders in place based around 4-day rotational shifts. Further, I similarly have considered that Mr Willner was 53 years of age, a sole income provider, had four dependents. Both live in a regional area of Western Australia, albeit that Albany cannot be characterised as a town supported by only a handful of businesses. Notwithstanding, I accept that it may be difficult for the Applicants to find work – notwithstanding the evidence led by CBH in this respect. Clearly, the financial and emotional impact of CBH’s decision to dismiss the Applicants has been significant.
[316] The Commission’s role is not to consider what it would have done, had it been in the position of the employer. Rather, it must consider whether the dismissal was harsh, unjust or unreasonable, taking into account all of the circumstances. The decision to dismiss the Applicants was a significant sanction; but it was not unjust or unfair, and in my view it was not harsh. The Applicants understood what was required of them insofar of standards of behaviour were concerned and the consequences of breaching those standards.
4 Conclusion
[317] Having taken into account each of the matters specified in s 387, I am satisfied that CBH had a valid reason for dismissing each Applicant based on his conduct. I find that the Applicants’ dismissals were not ‘harsh, unjust or unreasonable’,within the meaning of s 387 of the Act. It follows that the Applicants’ dismissals were not unfair. Accordingly, I am obliged to dismiss the applications and Orders 275 to that effect are being issued in conjunction with this decision.
DEPUTY PRESIDENT
Hearing details:
2021
July 19
2021
July 20
2021
July 21
Printed by authority of the Commonwealth Government Printer
<PR731792>
1 Witness Statement of Markus Willner dated 25 May 2021 (Willner Statement) Annexure MW 1.15, Courtbook [161].
2 Willner Statement, Annexure MW1.14.
3 Witness Statement of Garnet O’Connell (O’Connell Statement) [9].
4 O’Connell Statement [9].
5 Witness Statement of Andrew Young (Young Statement) [5].
6 Young Statement [6].
7 Young Statement [6].
8 O’Connell Statement [10].
9 Young Statement [7].
10 Young Statement [7].
11 Young Statement [7].
12 Young Statement [7].
13 O’Connell Statement [13].
14 O’Connell Statement [15].
15 O’Connell Statement [16].
16 O’Connell Statement [17].
17 O’Connell Statement [23].
18 Witness Statement of Beau Rogers [13], Court Book [507].
19 Witness Statement of Beau Rogers [13], Court Book [507].
20 O’Connell Statement [32].
21 Witness Statement of Gary Brown [12].
22 Witness Statement of Andrew McLean [7], Court Book [502].
23 Witness Statement of Andrew McLean [7], Court Book [502].
24 Transcript PN [966].
25 Transcript PN [965].
26 Transcript PN [967].
27 Witness Statement of Peter Tainsh in Reply Court Book [620].
28 Witness Statement of Peter Tainsh in Reply [30] Court Book [620].
29 Transcript PN [968] – [981].
30 Witness Statement of Markus Willner [5] Court Book [544].
31 Transcript PN [224] and [227].
32 O’Connell Statement [42].
33 O’Connell Statement [43].
34 O’Connell Statement [43].
35 O’Connell Statement [43].
36 Transcript PN [711].
37 Witness Statement of Andrew McLean [13].
38 Witness Statement of Andrew McLean [15].
39 Court Book [556].
40 Transcript PN [512].
41 Transcript PN [512].
42 Transcript PN [540].
43 Transcript PN [561], [565].
44 Transcript PN [582] – [584].
45 Witness Statement Peter Tainsh [60] Court Book [263].
46 Transcript PN [1058]-[1075].
47 Transcript PN [1085] – [1088].
48 O’Connell Statement [49].
49 O’Connell Statement [50].
50 O’Connell Statement [51].
51 O’Connell Statement [53].
52 Transcript PN [1312].
53 Transcript PN [1315].
54 Transcript PN [1327].
55 O’Connell Statement [61].
56 O’Connell Statement [62].
57 O’Connell Statement [62].
58 O’Connell Statement [62].
59 Witness Statement of Andrew McLean [29].
60 Witness Statement of Andrew McLean [30].
61 Transcript PN [3248].
62 Transcript PN [3255] - [3268].
63 Transcript PN [3271] – [3273].
64 Witness Statement of Paul Babun [19] Court Book [183].
65 Witness Statement of Paul Babun [20] Court Book [183].
66 Witness Statement of Paul Babun [21] Court Book [183].
67 O’Connell Statement [65].
68 O’Connell Statement [67].
69 O’Connell Statement [67].
70 O’Connell Statement [67].
71 O’Connell Statement [67].
72 Transcript PN [1579].
73 O’Connell Statement [69].
74 O’Connell Statement [70].
75 O’Connell Statement [80].
76 Witness Statement of Paul Babun [18] Court Book [183].
77 Witness Statement of Paul Babun [18] Court Book [183].
78 Witness Statement of Paul Babun [18] Court Book [183].
79 O’Connell Statement [88].
80 O’Connell Statement [96].
81 O’Connell Statement [98].
82 O’Connell Statement [99].
83 O’Connell Statement [103].
84 O’Connell Statement [110].
85 O’Connell Statement [111].
86 Ibid.
87 O’Connell Statement [112].
88 Transcript PN [755]–[756].
89 Transcript PN [760].
90 Transcript PN [762]; Witness Statement of Andrew McLean [9].
91 Transcript PN [764].
92 Transcript PN [765].
93 Transcript PN [766].
94 O’Connell Statement [122].
95 O’Connell Statement [122].
96 O’Connell Statement [128].
97 O’Connell Statement [130].
98 Transcript PN [1743] – [1745].
99 Transcript PN 1748] – [1749].
100 Transcript PN [588], [595].
101 Transcript PN [1174], [1183].
102 O’Connell Statement [131].
103 O’Connell Statement [133].
104 O’Connell Statement [138].
105 O’Connell Statement [140]-[142].
106 O’Connell Statement [150].
107 Brown Statement [23].
108 Brown Statement [23].
109 Brown Statement [17].
110 Brown Statement [20].
111 Court Book [1218].
112 Transcript PN [354].
113 Transcript PN [354].
114 Transcript PN [363].
115 Transcript PN [368].
116 Court Book [1218].
117 Transcript PN [1197].
118 Transcript PN [1227] – [1232].
119 Transcript PN [1233] – [1234].
120 Transcript PN [604], [605], [606], [607], [608], [609], [610], [611], [612], [613], [614], [615], [616], [617], [618], [625], [626].
121 Witness Statement of William Piercey (Piercey Statement) [7].
122 Transcript PN [2355].
123 Transcript PN [2361] – [2362].
124 Transcript PN [2365], [2367].
125 Transcript PN [2370].
126 Piercey Statement [8].
127 Piercey Statement [8].
128 Piercey Statement [9].
129 Piercey Statement [10].
130 Piercey Statement [10].
131 Court Book [119-120].
132 Transcript PN [3535].
133 Court Book [1986] Willner; Court Book [1969] Tainsh.
134 Court Book [1986] Willner; Court Book [1969] Tainsh.
135 Court Book [1987] Willner; Court Book [1970] Tainsh.
136 Transcript PN [3556].
137 Transcript PN [3553].
138 Transcript PN [3558].
139 Transcript PN [3561] – [3563].
140 Court Book [1988] and [1989].
141 Court Book [1989].
142 Court Book [1990].
143 Court Book [1990].
144 Court Book [1990].
145 Court Book [1991].
146 Court Book [1971]-[1976].
147 Court Book [1995] Willner; Court Book [1977] Tainsh.
148 Court Book [1995] Willner; Court Book [1978] Tainsh.
149 Court Book [1995] Willner; Court Book [1978] Tainsh.
150 Court Book [1995] Willner; Court Book [1978] Tainsh.
151 Court Book [1996] Willner; Court Book [1979] Tainsh.
152 Transcript PN [3568].
153 Transcript PN [3569].
154 Transcript PN [3573].
155 Transcript PN [3593] – [3594].
156 Court Book [1908].
157 Court Book [1982].
158 Court Book [1982].
159 Court Book [1114].
160 Court Book [866].
161 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465; B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 [41].
162 [2003] HCA 22 [30].
163 Witness Statement of Ryan Lamont [8]-[12].
164 Witness Statement Beau Rogers [15].
165 Ibid, [16].
166 Witness Statement of Alan Maris [15].
167 Witness Statement Gary Brown [11].
168 Witness Statement of Garnett O’Connell [31].
169 Tainsh Statement [60].
170 Tainsh Statement [49].
171 Witness Statement of Garnett O’Connell [122].
172 O’Connell [108] – [109].
173 O’Connell [108] – [109].
174 McGrath and Hayward v Sydney Water Corporation t/as Sydney Water[2013] FWC 793 [419] (and cases referred to within that case).
175 McGrath and Hayward v Sydney Water Corporation t/as Sydney Water[2013] FWC 793 [419] (and cases referred to within that case).
176 Court Book [1283].
177 National Jet Systems Pty Ltd v Mollinger 1998 PR R3130, [26].
178 Fair Work Act 2009 (Cth), s 394(2).
179 Fair Work Act 2009 (Cth), s 382.
180 Fair Work Act 2009 (Cth), s 385(d).
181 (1995) 185 CLR 411, 463.
182 B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWFB 6191 at [42].
183 Fair Work Act 2009 (Cth), s 387(a).
184 Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 (‘BCS’), [25], affirming B, C andD vAustralia Postal Corporation t/as Australia Post[2013] FWCFB 6191, [34].
185 [2013] FWCFB 6191.
186 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
187 CourtBook [835].
188 R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601, 621-2.
189 Ibid.
190 [2013] FWCFB 3316, [8].
191 Ibid.
192 (1938) 60 CLR 601, 622.
193 Fair Work Act2009 (Cth), s 591.
194 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 at [61],[62].
195 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2013] FWCFB 7736 at [21], citing Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125.
196 Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd[2014] FWCFB 657 at [63].
197 Maris Statement, Court Book 498 [32].
198 Maris Statement, Court Book 498 [32].
199 Transcript PN [2546].
200 Maris Statement [24], Court Book [498].
201 Ibid.
202 McLean Statement [22], Court Book [503].
203 Transcript PN [3215].
204 McLean Statement [23], Court Book [23].
205 McLean Statement [24], Court Book [503].
206 Mclean Statement [13], Court Book [503].
207 Mclean Statement [13], Court Book [503].
208 Mclean Statement [14] – [15], Court Book [503].
209 Transcript PN [3277].
210 Transcript PN [3277].
211 Brown Statement [20], Court Book [515].
212 Brown Statement [21], Court Book [515].
213 Brown Statement [22], Court Book [515].
214 Paragraph [31].
215 Witness Statement of Machiel Moolman [11].
216 Transcript PN [2948].
217 Transcript PN [2949].
218 Transcript PN [2949].
219 Transcript PN [2365].
220 Transcript PN [546-549], [583-585], [1080].
221 Transcript PN [1066] – [1080].
222 Transcript PN [712] – [715].
223 Witness Statement of Peter Tainsh in Reply, Court Book 620 [41].
224 Witness Statement of Peter Tainsh in Reply, Court Book 620 [31]
225 Transcript PN [354].
226 Transcript PN [398].
227 Transcript PN [1197].
228 Transcript PN [273].
229 Transcript PN [321], [PN324] – [PN 325].
230 Transcript PN [326], [PN 328].
231 Transcript PN [329].
232 Transcript PN [850].
233 Transcript PN [850].
234 Transcript PN [850].
235 Transcript PN [855].
236 Transcript PN [856].
237 Transcript PN [860].
238 Transcript PN [860].
239 Transcript PN [861].
240 Lamont First Witness Statement September 2020 [15].
241 Witness Statement of Beau Rogers [24].
242 Transcript PN [3043].
243 Transcript PN [3046].
244 Transcript PN [3061].
245 Royal Melbourne Institute of Technology v Asher[2010] FWAFB 1200, [26].
246 Ibid.
247 PR948009.
248 (1995) 60 IR 1.
249 Selvachandran v Peteron Plastics Pty Ltd (1995) 61 IR 371.
250 Fair Work Act 2009 (Cth), s378(a).
251 Court Book [142] Transcript of Interview with Markus Willner.
252 Court Book [316] Transcript of Interview with Peter Tainsh.
253 [2010] FWAFB 4082.
254 Court Book references Mr Tainsh's is at 1067, Mr Willner's is at 1084, Mr Bavun's is at 1102, Mr Lamont's is at 1121, and Mr Young's is at 1139.
255 Response to letter dated 8 January 2021. Court Book [333].
256 Response to letter dated 8 January 2021. Court Book [1086].
257 Response to letter dated 8 January 2021. Court Book [1104].
258 Response to letter dated 8 January 2021. Court Book [1123].
259 Response to letter dated 8 January 2021. Court Book [60].
260 Court Book [1075] (Tainsh), [1092] (Willner); [1111] (Bavun); [1130] (Lamont); [1151] (Young).
261 Court Book [1078].
262 Courtbook [1095].
263 Courtbook [1114].
264 Courtbook [530], Annexure WP-1.
265 Courtbook [530], Annexure WP-1.
266 Court Book [529]-[530] (WP-1).
267 Court Book [530] (WP-1).
268 Transcript PN [3573].
269 Benjamin Morovan v Laverton Cold Storage Pty Ltd [2020] FWC 2999 [50].
270 Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2016] FWC 4129; Mt Arthur Coal Pty Ltd v Goodall[2016] FWCFB 5492 [55].
271 [2016] FWC 4129.
272 Mt Arthur Coal Pty Ltd v Goodall[2016] FWCFB 5492 [55].
272 [2016] FWC 4129.
273 Pacific Access Pty Ltd v CPSU (1998) 83 IR 323 at 333 per Giudice P, McBean SDP and Lewin C.
274 Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2016] FWC 4129.
275 PR735545.
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