[2017] FWC 2584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Solin
v
Chevron Australia Pty Ltd
(U2016/13206)

COMMISSIONER WILLIAMS

PERTH, 22 MAY 2017

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Robert Solin (Mr Solin or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is Chevron Australia Pty Ltd (Chevron or the Respondent).

Evidence

[2] The parties have submitted a statement of agreed facts which I accept.

[3] For the purposes of this proceeding only, the Applicant and the Respondent agree as follows.

[4] The Respondent is the operator of the Gorgon Liquefied Natural Gas Project on Barrow Island (BWI) in Western Australia (Gorgon Project).

[5] Pursuant to an employment contract dated 2 August 2013, the Applicant initially commenced employment with the Respondent on 2 September 2013 in the position of Production Technician - Pay Salary Grade 18 based in Perth in the Respondent’s Gorgon Operations department.

[6] On 23 July 2014, the Applicant entered into a new contract of employment with the Respondent in the position of Production Technician - Pay Salary Grade 18 in the Respondent’s Gorgon Operations department pursuant to which the Applicant would mobilise to the Gorgon Project on a rotational basis (2014 Contract).

[7] The 2014 Contract relevantly states that:

“The Company has policies and procedures which have been made accessible to all employees. You will be required to familiarise yourself with and comply with such policies and procedures as amended by the Company in its sole discretion from time to time. The Company's policies and procedures do not form part of your contract of employment and are not binding on the Company.”

[8] The Applicant commenced work on BWI on 6 August 2014 on a Ten Week Roster.

[9] At the date of his dismissal, the Applicant was a senior employee on the Gorgon Project, and he received a total remuneration package of $193,546 (gross), comprised of the following components:

(a) Base salary: $107,300;

(b) Field loading: $55,000;

(d) Various non-cash benefits, including:

(i) Chevron Employee Share Plan: $2,146;

(ii) Superannuation: $17,168;

(iii) Superannuation administration fees: $487;

(iv) Group Life Insurance: $1,193; and

(e) At-risk bonus (to be paid in April 2017 based on performance): up to $8,584.

[10] Two of the Respondent’s key policies are the ‘Chevron Way’ and the ‘Business Conduct and Ethics Code’. These policies articulate the Respondent’s values and establish the standard of conduct with which it expects all of its employees to conduct themselves. These policies place the highest priority on the health, safety and diversity of the Respondent’s workforce.

[11] The Chevron Way relevantly provides that:

“Values

Our company’s foundation is built on our values, which distinguish us and guide our actions. We conduct our business in a socially responsible and ethical manner. We respect the law, support universal human rights, protect the environment and benefit the communities where we work.

Integrity

We are honest with others and ourselves. We meet the highest ethical standards in all business dealings. We do what we say we will do. We accept responsibility and hold ourselves accountable for our work and our actions.

Diversity

We learn from and respect the cultures in which we work. We value and demonstrate respect for the uniqueness of individuals and the varied perspectives and talents they provide. We have an inclusive work environment and actively embrace a diversity of people, ideas, talents and experiences.”

[12] The Business Conduct and Ethics Code relevantly provides that:

“We Respect Diversity

Diversity is a/so a fundamental value at Chevron. As stated in The Chevron Way, this means that “we learn from and respect the cultures in which we work.” We also value "the uniqueness of individuals and the varied perspectives and talents they provide." We promote diversity within our workforce and have an inclusive environment that helps each of us to fully participate and contribute to Chevron’s success.

…

Preventing Workplace Violence and Harassment

…

Chevron is also committed to a workplace free of harassment. If you are confronted with harassment, you should report your concern to your supervisor, local management, Human Resources representative or Chevron's Hotline.”

[13] Additionally, in alignment with the values set out in the above policies, the Respondent maintains various other employee policies aimed at promoting an inclusive workforce and prohibiting workplace bullying, harassment and discrimination. This includes Policy 277- Discrimination, Harassment and Bullying (Discrimination Policy).

[14] The Discrimination Policy relevantly provides that:

“General Policy

Chevron is fully committed to providing a work environment in which diversity and individual differences are respected and which is free from unlawful discrimination and inappropriate workplace behaviour, including harassment and bullying. This commitment is reflected in this policy and its associated programs.

…

Workplace Behaviour, Bullying & Harassment

All employees are required to treat their colleagues and other people they have contact with in the course of their employment with respect and honesty. Inappropriate workplace behaviour, including rude or offensive behaviour, workplace bullying and harassment is not tolerated by Chevron.

Workplace bullying is unreasonable and inappropriate behaviour and includes behaviour that intimidates, offends, degrades or humiliates a worker.

…

Some examples of what may be considered harassment are:

- Verbal harassment, eg. Offensive jokes, photographs, computer screen images, calendars, slurs, name calling and the display and distribution of objectionable cartoons.

…

- Sexual harassment, eg. Unwelcome or unsolicited sexual advances or innuendoes, requests for sexual favours or other verbal or physical conduct of a sexual nature.

Chevron representatives will endeavour to conduct a prompt and appropriate investigation of any complaints. Managers and supervisors will take disciplinary action, where appropriate, upon completion of an investigation and the evaluation of its results. Any manager or supervisor who knows of inappropriate workplace behaviour is responsible to take appropriate action.

Disciplinary action will be taken against employees who have been guilty of bullying or harassment. Such action may include the termination of employment.”

[15] All employees of the Respondent are provided training in relation to the Respondent’s employment policies during their induction. The Applicant completed Australian Business Unit Induction on 2 September 2013 and Gorgon Project Induction on 18 February 2014, which included training in relation to the Chevron Way, the Business Conduct and Ethics Code and the Discrimination Policy.

[16] The Applicant was also required to complete regular refresher training in relation to the Respondent’s policies, as well as training in relation to Cross-Cultural Awareness and Valuing Diversity.

[17] The Respondent’s training records confirm that the Applicant completed training in relation to:

(a) the Business Conduct and Ethics Code (which also included training in relation to the Chevron Way) on 4 September 2013, 1 May 2014 and 10 October 2016;

(b) Valuing Diversity on 9 September 2013;

(d) the Discrimination Policy (for supervisors) on 11 September 2013 and 1 May 2014; and

(e) Cross-Cultural Awareness on 30 April 2014.

[18] On 28 September 2016, the Applicant was rostered to work day shift.

[19] At around 5.00 a.m., the Applicant was on a bus which was transporting workers from the accommodation camp on BWI to the Operations Centre Building.

[20] During the course of this bus ride, the Applicant engaged in a conversation with other workers which was offensive and inappropriate. During the conversation the participants broke into laughter (the Incident).

[21] At the time of the Incident, there were at least two workers of Aboriginal heritage on the bus, Mr Michael Harkins (Mr Harkins), at the time a Facilities Engineer, and Mr Craig Jackamarra (Mr Jackamarra), Production Technician.

[22] The term “gin” is a racial slur used to refer to an Aboriginal woman in a derogatory manner.

[23] On 28 September 2016, Mr Harkins informed his Supervisor, Mr Dale Payne (Mr Payne), Gorgon Planning Coordinator, of the Incident by email. Mr Harkins alleged that the participants in the Incident had made “disrespectful derogatory comments...directed towards Indigenous Australians”.

[24] Later on 28 September 2016, at approximately 5.13 p.m., Mr Harkins sent a second email to Mr Payne identifying the Applicant as one of the workers involved in the Incident, along with Mr Fabrice Lepine (Mr Lepine), Production Technician, and Mr Laurie Burrows (Mr Burrows), Production Specialist. While Mr Harkins alleged there were other individuals also involved in the conversation, he could not identify them.

[25] On 29 September 2016, Mr Harkins made a formal written complaint in relation to the Incident (Complaint).

[26] The Complaint again identified that the Applicant had been part of the group of employees involved in the Incident and alleged that the group of employees had made “derogatory comments against Aboriginal Women”, including by telling a number of “disgraceful” stories.

[27] Mr Harkins also said in the Complaint that:

“[during the Incident] I was sitting there and [my] blood was boiling and my adrenalin was pumping, I was hurt, angry and so disgusted, as these disgusting comments are directed towards all the women within my family.”

[28] Immediately following receipt of the Complaint, the Respondent initiated an investigation into the Incident (Investigation). The Investigation was primarily conducted by Ms Kate Johnston (Ms Johnston), Human Resources Business Partner.

[29] The Investigation involved preliminary information gathering discussions via telephone with the complainant (Mr Harkins), the Applicant, and other workers on the bus who had been involved in, or witnessed, the Incident.

[30] On 6 October 2016, Ms Johnston had an initial conversation with the Applicant by telephone, as he was on an ‘off duty’ period of his roster cycle at that time. During this conversation:

(a) Ms Johnston explained that:

(i) she was speaking in the capacity of HR Business Partner Operations regarding a complaint made against the Applicant in relation to conduct on the work bus at BWI on 28 September at approximately 5.00 a.m.;

(ii) it had been alleged that the Applicant made offensive comments of a racially and sexually offensive nature, and she was contacting the Applicant to schedule some time with him for an initial interview to afford him an opportunity to respond to allegations in the complaint; and

(iii) given the nature of the allegations, it was important that they be dealt with promptly, via telephone in the initial circumstances and if a further meeting was required in person it would be facilitated.

(b) the Applicant requested that Ms Johnston call him at 5.00 p.m. that day and confirmed a contact phone number; and

(c) Ms Johnston then provided the Applicant with further information about the Investigation process, including the importance of confidentiality, employee privacy and protection from victimisation.

[31] At around 5.00 p.m. on 6 October 2016, the Applicant participated in a telephone interview with Ms Johnston and Ms Vedrana Pisaric, Human Resources Business Partner, Gorgon Project. The Applicant did not request but was also not invited to have a support person present during the interview.

[32] During this interview:

(a) Ms Johnston asked Mr Solin to confirm whether the Incident described in the Complaint occurred including:

(i) if he had made the statement attributed to him, which is the first statement described in the Complaint; and

(ii) whether another person in the group had made the second statement which is described in the Complaint.

(b) in response to these allegations, the Applicant:

(i) did not admit to making the statement in the terms described in the Complaint but did admit to engaging in an inappropriate conversation using some of the words used in the Complaint, including the word “gin”; and

(ii) admitted to apologising to Mr Harkins later that day, once he became aware that Mr Harkins had been offended by the Incident.

[33] Following the completion of the Investigation, Ms Johnston concluded that:

(a) the Applicant had made the first statement described in the Complaint;

(b) on balance, someone else participating in the same conversation had made the second statement described in the Complaint, however, Ms Johnston was satisfied that it was not the Applicant who made this statement; and

[34] On 13 October 2016, the Applicant attended a meeting in Perth with Ms Johnston and Mr Murphy Bowers (Mr Bowers), BWI Asset Manager, during which he was informed of the Investigation findings and provided with the opportunity to provide a response. The Applicant was offered the opportunity to bring a support person to this meeting, but he declined to do so.

[35] During the meeting, the Applicant was also provided with written notice setting out the Investigation findings. This notice confirmed the Respondent considered the Applicant had engaged in workplace behaviour and conduct constituting a serious breach of the Discrimination Policy.

[36] The notice provided that the Applicant had a further opportunity to provide any mitigating factors or further response to the Respondent in writing by close of business on 14 October 2016.

[37] On 14 October 2016, the Applicant provided a further written response to the Respondent. In his response, the Applicant stated:

“Firstly I would like to reiterate that I am deeply sorry for any comments made during the incident that have caused upset to [Mr Harkins] and [Mr Jackamarra]. After offering an unreserved apology to [Mr Harkins] and listening to his point of view I understood immediately that he was highly offended by my comments and considered them completely inappropriate. I feel embarrassed and ashamed that my language has had this effect on another person in our workplace and will make sure this behaviour is never repeated.”

[38] On 17 October 2016, the Applicant attended another meeting with Ms Johnston and Mr Bowers. Again, the Applicant was offered the opportunity to bring a support person to this meeting, but declined to do so.

[39] At this meeting, Mr Bowers informed the Applicant that, after considering his response to the Investigation findings, the decision had been made to terminate his employment with immediate effect, and that he would be paid five weeks’ salary in lieu of notice, as well as any accrued but untaken leave entitlements.

[40] A number of the relevant attachments that accompanied the statement of agreed facts are reproduced below.

[41] Mr Harkins’ formal written Complaint made by email on 29 September 2016 read as follows.

“Dale,

As discussed, I am lodging a formal complaint against the Employees who were part of the group responsible for the derogatory comments against Aboriginal Women, on the 5:00am bus to work on the 28/9/16.

Three of the employees which I can positively identify who were part of the group are named below:

Robert Solin
Laurie Burrows
Fabrice Lepine

There were a couple of others involved, who I can't identify.

I boarded the bus just in time to make the 5:00am departure. I noticed there were sporadic empty seats at the front of the bus, but spotted vacant rows toward the back of the bus. I sat approximately five (5) rows from the back of the bus.

The bus departed, and then I heard the word “gin” come from a group of employees that were sitting at the back of the bus, I proceeded to hear a disgusting story told by one of the employees in the group and about how he or someone else had once f****d a gin on a beach, and during sex was bitten by sand flies etc, he thought to himself, f*** this I'm getting out of here and left her stranded on the beach.

I was shocked about what I had heard, and I could not believe the audacity of the group, as the disgraceful story was very pronounced and they were all laughing about the story, and having a good time. I looked across and there was another Indigenous employee sitting in the isle directly across from me, so both of us were in ear shot and heard the disgraceful comments. The other Indigenous employee was Craig Jackamarra.

Then, another story started, and a story was told by a member of the same group at the very back of the bus, about how he use to see gins, hitchhiking from some place to another place, and would pick them up and f**k the bums off them, and then dump them in the middle of nowhere. The group found this very amusing and broke out into laughter.

I was sitting there and (sic) blood was boiling and my adrenalin was pumping, I was hurt, angry and so disgusted, as these disgusting comments are directed towards all the women within my family.

I remained calm and I made sure I was able to positively identify members of the group.

Could this matter please be formally investigated by Human Resources, as this disgraceful incident, I'm sure is in no way condoned by Chevron.

Regards,

Michael Harkins BEng (Civil)
Horizons Facilities Engineer
Gorgon Operations”

[42] At the meeting on 13 October 2016 Mr Solin was given an opportunity to provide a further written response to the allegations and Chevron’s Investigation findings and did so by email as follows.

“From: Solin, Robert
Sent: 14 October 2016 1:01 PM
To: Johnston, Kate; Bowers, Murphy
Subject: Alleged breach of company policy 277

Hello Kate and Murphy,

As requested, I would like to provide a written response to our discussion in regard to the incident on the 28/9/2016.

Firstly I would like to reiterate that I am deeply sorry for any comments made during the incident that have caused upset to Michael and Craig.
After offering an unreserved apology to Michael and listening to his point of view I understood immediately that he was highly offended by my comments and considered them completely inappropriate.
I feel embarrassed and ashamed that my language has had this effect on another person in our workplace and will make sure this behaviour is never repeated.

As discussed yesterday, I would like to provide context to the discussion on the morning of October 28th.
The talk on that morning started out about old rundown pubs which progressed (sic) the Roebourne Pub and then I brought up the incident discussed after the Roebourne races with my friend and his girlfriend.
I understand that Michael and Craig could not have known this because I had only spoken of my mate and a young gin having sex, being bitten by sandfleas and him taking off and leaving her.
This has been a funny story told many times in mixed company about my friend who lived with us in Karratha and his girlfriend ginny who often stayed over including the night of the races, to provide a bit of payback.

I understand from the letter provided that Michael was not satisfied with my apology because I had tried to justify my use of the word gin.
My background in working with, supporting and providing advocacy for many aboriginal people over a long period of time is testament to the fact that I would never intend to discriminate or make offensive remarks about an Aboriginal person or anyone else for that matter. My paradigm of the word gin was simply Aboriginal woman unless used as a direct angry slur to someone.

I am able to supply the names of the HR Managers at BHP and Fortescue Mining and also the Operations Manager at Clontarf Foundation to speak with for a character reference if needed.

Also Dean Wood, Craig Giacomel and Marsh Jackson are Aboriginal men I have worked with at Chevron who may also
provide an insight into my character. Vern Vice and Brian Arana are two non-Caucasian Coordinators who I work with
on A shift that can also speak of my character and standing in the workplace.

This incident and its regretful consequences have provided a huge learning curve for me in regards to our Policy 277 and the use of the word gin.
My hope is that Michael can see fit to forgive me knowing the context of my comments and my background, and we are able to have a respectful working relationship.

Yours sincerely,
Robert Solin.”

[43] The termination of employment letter dated 17 October 2016 relevantly reads as follows.

“Dear Robert,

Termination of employment

As per our meeting and the letter provided to you on the 13 October, the Company has been considering disciplinary action against you up to and including termination of employment.

This followed the Company's findings that you breached Company Policy 277 Discrimination, Harassment & Bullying ("Policy 277") when you were involved in a conversation where racially and sexually offensive statements concerning aboriginal women were made whilst travelling on a bus on Barrow Island with other Chevron employees on 28 September 2016 (“Complaint”).

Based on those findings, and taking into consideration of your written response provided 14 October, the Company has decided to terminate your employment with immediate effect…”

[44] Having considered the evidence of the witnesses I make these additional factual findings.

[45] Mr Solin is 59 years of age.

[46] The events to which Mr Solin was referring when he was speaking with his friends on the bus on the morning of 28 September 2016 occurred in approximately the mid-1970s.

[47] Prior to this Incident Mr Solin had an unblemished employment record with Chevron.

[48] Between 2004 and 2008 Mr Solin worked as the Director of the Waterford Academy run by the Clontarf Foundation which is involved in the promotion of education, training and employment for young Aboriginal men.

[49] Between 2008 and 2009 he was employed with BHP Billiton as an Indigenous Employment Adviser.

[50] Between 2010 and 2013 Mr Solin worked for Fortescue Metals Group as an Indigenous Development Advisor. In this position Mr Solin was supervised and received instructions from an Indigenous Manager, with whom he maintains an on-going friendship.

[51] Mr Solin’s unchallenged evidence which I accept is that over the last 30 years he has had many positive interactions with Aboriginal people as football teammates, workmates, friends and acquaintances. He has worked in roles where he mentored, managed and coached many Aboriginal people, mostly young men. In addition has been an advocate for Aboriginal people. 1

[52] Mr Solin has built many positive relationships with Aboriginal people in the Western Australian community which he maintains today.

[53] In terms of gaining other employment since his dismissal Mr Solin has, for four weeks, worked for the Clontarf Foundation assisting them open a new academy for Aboriginal boys in Cairns.

[54] His evidence as to what occurred on the bus was that there were four men sitting on the back of the bus all within earshot of each other. It was a noisy bus, it was 5.00 a.m. and dark and they were just having a conversation. He was not thinking that there was anybody else outside of the group listening to the conversation because the majority of the people were at the front of the bus. 2

[55] The conversation had turned to memories of the Roebourne Pub. Mr Solin’s evidence was that Mr Burrows said, “Roebourne? Shit that brings back memories of the silly old Slavs trying to pick up the gins on the road into Roebourne.”

[56] Mr Solin says he then said words to the effect of, “We went to the Roebourne Races one year. My mate and his missus, who was a young gin, were fucking on the beach at Roebourne after the races, the tide went out and he had to stop because he was getting his arse chewed by sandflies”. 3

[57] With respect to the word “gin” his evidence was that having worked with indigenous people for years he understood that to say this word directly to an Aboriginal woman would be derogatory but the way in which to he used it, in the story he told on the bus, was not in his view derogatory. 4

[58] His evidence was that when he was at Clontarf he was always working with Aboriginal men and woman and they would use the word “gin” regularly as well. He acknowledges now that they were allowing him to use the word because he had a relationship with those people and knew him so it was not an issue for them.

[59] At the time of the Incident after Mr Jackamarra expressed his upset at what Mr Solin said, Mr Solin realised he had upset both him and Mr Harkins by using the word “gin”.

[60] Subsequently he googled the word “gin” and was surprised to learn it was always a derogatory term however it was used. 5 He acknowledged that using the word “gin” was inappropriate and he understands why Mr Harkins was upset and affected when he heard the word used by Mr Solin on the bus.

[61] His evidence was the story he told was about two friends of his who were drunk having consensual sex on the beach and one of them takes off home having been bitten by sandflies. 6

[62] Mr Solin repeatedly in his evidence acknowledged that the word “gin’ was inappropriate and he should not have said it. 7

[63] As to his story being disrespectful towards women and involving sexist and degrading language as Ms Johnston’s Investigation found it did 8, Mr Solin’s evidence was that he acknowledged he should not have used the word “rooting” to describe people having sex and acknowledged it was inappropriate to tell the story in the workplace but it was a story about a couple having consensual sex and did not include any element of discrimination against women.9

[64] Mr Solin had explained to Ms Johnston the conversation was “closed” by which he meant it was intended to be private and he was surprised others had heard what was said.

[65] Mr Solin’s evidence was that he was upset that mediation between himself and Mr Harkin had not been attempted as a way to resolve Mr Harkins’ concerns.

[66] He says his background and involvement working with Aboriginal people in Western Australia demonstrates he is not a racist and he is hurt that Chevron are making him out to be a racist to confirm their decision. 10

[67] Mr Solin gave evidence that he had been told by Chevron employees on the Wheatstone Project that a couple of weeks after he had been dismissed Mr Uren, an employee of Chevron, had used the word “nigger” in a meeting at the workplace with Chevron managers and he had been given a written warning for this.

[68] Mr Solin’s evidence was that the morning of the hearing he had spoken to Mr Uren on the phone. Mr Uren told him that although he was told he would get a written warning for this he had not received one but a letter had been put on his record and he was told it would stay there for 12 months.

[69] Under cross-examination Mr Solin’s evidence was that when you get on the bus the lights are on inside but turn off when the bus moves off. He acknowledged that if he had turned his mind to it he would have known that Aboriginal people or woman could be on the bus.

[70] Mr Solin denies that either Mr Burrows or Mr Lepine said words to the effect of “…and they fucked the bums off them.” 11

[71] The evidence of Mr Harkins in his witness statement relevantly was as follows.

“…I sat down around 4-5 rows from the back of the bus, near where Craig was sitting. As I took my seat, I noticed Laurie sitting down on the back row of seats, with a group of around 4 or 5 other Production workers who I didn’t know.

At the start of the bus trip, I was just looking out the window and thinking about what I had on for the day, as you do when you jump on a bus at 5:00am in the morning. After a couple of minutes, I overheard a conversation between the group of employees who were with Laurie, around 4 or 5 rows behind where I was sitting.

This conversation caught my attention because I heard someone use the word “gin”, which is a word which burns me to my bones. In my experience, "gin" is a derogatory word used to refer to an Aboriginal woman. It is an extremely disrespectful term, and it is up there with a lot of other racist and sexist words that people use to describe Aboriginal people and women. As an Aboriginal person, it is a word I would never normally use.

Once I started paying attention to the conversation, I heard one group member tell a story about how someone had once “fucked a gin on a beach” and proceeded to get bitten by sand flies and thought “fuck this, I'm getting out of here” and just left her alone on the beach. They all then broke out into laughter, like they were a group of school boys. I didn’t recognise the person who told this story at the time, but I now understand that it was the applicant, Robert Solin.

Initially, I just wanted to turn around and say something to them, but I decided to keep listening and notify my superiors after the bus ride was over.

As I kept listening, another member of the group told a story that was about “gins Hitchhiking’ in rural areas and how men would pick them up, “fuck the bums off them” and then basically just leave them in the middle of nowhere to make their own way back into town. I couldn’t determine who told this second story, as I was not looking at the group, but I knew that it was told by a different person, as the voice was different.

At that point, I turned around and looked Laurie dead in the eye, as he was the only one I knew. Before this incident, I had had a number of dealings with Laurie and I liked him. He was always polite to me and responsive on work issues, and I thought that he was one of the best Production Technicians I had worked with on the Gorgon Project. When I realised that he was participating in this offensive and demeaning conversation it was pretty gut wrenching.

After the second story, I did not hear them say anything else, and the bus ride finished shortly after.

I was absolutely disgusted by these stories and I couldn't believe the audacity of telling a story like that in a workplace, particularly within earshot of Craig and me, as we are both Aboriginal. When you start working for Chevron you go through a series of inductions that make it clear that there are employees from all over the world working at Chevron, so any form of discrimination or harassment is not tolerated.

I was very upset by the use of the term “gin”, which I consider is racist, offensive and derogatory. I was also upset about the whole context of the conversation, not just the word “gin”, particularly the derogatory way they had spoken about women and how they were all laughing at these offensive comments. When I heard them use the term "gin" so flippantly, all I could think is that they were showing contempt for all the women in my family, my mother, my daughter, my grandmother, and it made my blood boil.”

[72] Mr Harkins spoke to Mr Jackamarra about the Incident. His evidence was that some time later,

“I asked Craig if he could tell me who had been involved in the incident. Craig told me that he recognised Laurie, Fabrice and the applicant, Rob Solin. He also said that Rob had told the first story I had heard, but that he didn't know who told the second story. Craig then suggested that I should talk to Rob to "just see what he says". I agreed to this suggestion, even though I had doubts about whether I should speak to Rob face to face, given how upset I was.

About 30 minutes later, Craig came up to my workshop on the mezzanine floor of the POF with Rob. Craig then left us alone to talk, and Rob and I went out onto the deck area to have some privacy.

Once we were alone, Rob told me that he would never have said the word “gin” if he thought it was ever going to offend anybody and that "gin" was a common phrase used by the Aboriginal people he had grown up around. He also told me that he didn't realise it had a derogatory meaning. I had thought that he had come to talk to me to apologise, but when he started trying to justify what he had said, I just lost all respect for him. If anything, I thought his excuse that he had grown up around Aboriginals made his use of that type of language even worse; even if what he was saying was true, I just thought it was blatant ignorance.

At no point during our discussion did Rob say that he was sorry or apologise to me, he just tried to justify his language. Rob also didn't deny that he made any of the statements I had heard.

Based on these conversations with Craig and with Rob outlined above, I am certain that Rob made the first offensive statement I heard about how he or someone he knew had “fucked a gin on the beach”.

After my conversation with Rob, I sent a second email to Dale identifying the workers who had been involved in the conversation.”

[73] Under cross-examination Mr Harkins confirmed that he is no longer working at BWI but is working offshore on the Wheatstone platform.

[74] Mr Harkins agreed that none of the induction material tells other workers which words they can and cannot use. 12

[75] Mr Harkins believed Mr Solin’s attempted apology to him was not sincere. He perceived it as someone trying to wriggle their way out of something. His evidence was that Mr Solin never said sorry. 13

[76] His evidence was that initially mediation was something he was open to but overnight he changed his mind. A mediation session had been organised by Chevron but this was then cancelled. 14

[77] Ms Johnston is a Chevron Human Resources Business Partner and was responsible for investigating Mr Harkins’ Complaint. Extracts from her statement relevantly were as follows.

“On or about 29 September 2016, Mr Smith forwarded me another email from Mr Harkins. This email contained a detailed description of the Incident and it made me realise the severity of the situation. I was quite shocked by what Mr Harkins had alleged occurred.

…

I asked Mr Harkins if he had any further information about the Incident that wasn't in his complaint, and he responded by telling me that Mr Jackamarra had introduced the applicant to him after the Incident, as the applicant had allegedly wanted to apologise to him. Mr Harkins said that he felt the applicant had not actually apologised, because the applicant had just tried to justify his use of language, particularly the use of the word “gin”, rather than saying he was sorry or showing any real remorse.

From our discussion, I understood that Mr Harkins had been deeply offended by the Incident. He told me that there was simply no excuse for that type of behaviour in the workplace in 2016. He also told me he was offended by the language as an Aboriginal person, but also because of the way that the group of workers were talking about women in such a disrespectful manner. He took the comments as being disrespectful to all of the women in his family and said that it made him feel sick. He told me that he was particularly upset at the way the all of the members of the group had laughed after each of the stories.

…

On 5 October 2016 I spoke with Mr Jackamarra by phone. Mr Jackamarra confirmed to me that he had witnessed the Incident. Mr Jackamarra said that he was reluctant to tell me precisely what he had heard, because of the language used, but eventually he told me that he had recognised the applicant's voice telling a story about "rooting a gin down the beach, when sand flies attacked and he ran away''. While this wasn't the exact wording Mr Harkins had told me was used during the incident, I was satisfied that it was substantially similar.”

[78] Ms Johnston took notes of her Investigation interviews. An extract from the notes she took when interviewing Mr Jackamarra are set out below.

“Craig:

Did hear a bit of that

Kate:

Question: it has been stated a derogatory conversation took place relating to aboriginal women. Do you recall anyone having a conversation of this nature? If so, what was said specifically and by who?

Craig:

I’ll repeat what I heard. There were blokes up the back of the bus talking, I recognised the blokes voice as Rob Solin. Funny stories were being told to the group. Please know I wouldn't normally say this to a lady.

Rob Solin said “Rooting a gin down the beach, when sand flies attacked and ran away”.

I’m 53 years of age and aboriginal so I turned off at this point.

Aboriginal women are ‘gins’, I know the bloke (Rob Solin) and that he has previously played footy with a lot of aboriginal people therefore he would have heard that term commonly used to describe aboriginal women in WA Culture.

After I got off the bus I approached Rob as I knew Mike was quiet upset I explained to Rob that over the years when I have heard this type of conversation I’d learnt to walk away as there is no benefit in reacting. I went on to say that you can’t choose who you work with. I explained that Mike was upset, I said I would talk to Mike and introduce the two of you to try to mediate the situation.

After speaking with Rob I then spoke to Mike.

I then went to see Rob again later with the plan to introduce the two guys, Rob told me he was embarrassed as he had just googled the meaning of the work (gin).

Personally for me growing up in WA and in m(sic) culture ‘gin’ is not necessarily derogatory. Can’t say what it means to Michael in Queensland growing up.

I know Mike was quite offended. I introduced Mike to Rob they spoke alone as I got called away to a job.

Mike later told me he felt Rob was sincere but he wasn’t happy still, didn’t feel the situation was resolved.

Another bloke involved French man Fabrice Lepine, however didn’t hear him say anything (not as far as can recall as I had shut off). To be honest in my life I probably hear the work gin twice a month, had it all my life.

Speaking afterwards with Fabrice, he said he didn’t remember the conversation or the term gin being used.

That’s about as much input I’ve had in this situation.

I can see both sides of the situation.

Growing up as the only aboriginal in town, I was exposed to this a lot. In these situations learnt it’s best to walk away. I don’t have to be there to tolerate. My son experiencing the same…

Kate:

Question: Did you hear any further conversation?

Craig:

No I turned off, happened to me a lot over the years (in general in life). The more you listen the more infuriating it can become. Not directed and me personally and I can’t control others. Obviously hit a nerve with Mike, ‘gin’ has a different meaning to him. (Underlining added) 15

[79] Ms Johnston in her statement goes on to detail her Investigation findings. Extracts from her statement relevantly were as follows.

“After speaking with all of the witnesses to the Incident, I was satisfied that Mr Harkins’ allegation against the applicant was substantiated. That is, I was satisfied that, on the bus ride from site on 28 September 2016, the applicant had made a statement to the effect that he or someone he knew “had once fucked a gin on a beach, and during sex was bitten by sandflies, and thought to himself, ‘fuck this, I'm getting out of here’, and left her stranded on the beach.”

…

I considered that the applicant’s behaviour was extremely serious. I had not seen an incident where there had been racial and sexual overtones to this extent before, particularly given the profound impact the Incident had on Mr Harkins. I considered that the behaviour was a direct violation of a number of Chevron policies and procedures, with which Chevron employees are required to comply, particularly the Discrimination Policy.

…

On 12 October 2016, I provided Ms Butler and Murphy Bowers, Barrow Island Asset Manager with a copy of a report I had prepared in relation to my investigation (Report).

I later had discussions with Ms Butler and Mr Bowers, as I knew that we needed to consider next steps in terms of what would be the appropriate disciplinary action to be taken against Mr Burrows, Mr Lepine and the applicant.

Both Ms Butler and Mr Bowers told me that were very disappointed by the behaviour in which the employees, particularly the applicant, had engaged and that it was essential for Chevron employees to appreciate that this type of behaviour was completely unacceptable and would not be tolerated by Chevron.

Ms Butler and Mr Bowers told me that they considered that the behaviour was very serious, and would need to be treated as such when it came to determining what disciplinary action to take, and that they were considering terminating the applicant's employment; however, they said that they wanted to give the employees an opportunity to respond before making any final decisions.

…

At around 1:00pm on 14 October 2016, I received the applicant's written response by email. I was glad that the applicant had taken the opportunity to provide us with something in writing, as we were going to have to make a serious decision and I wanted to ensure that we did not ignore something important. A copy of the applicant's written response is attached to the Statement of Agreed Facts filed in relation to these proceedings and marked “Attachment 10”.

After reviewing the response, I thought that it was a fairly genuine email, and that it did appear that the applicant was sorry that his actions had caused offence to Mr Harkins and Mr Jackamarra, but that it did not raise any issues or matters of substance of which I was not already aware. Further, as he had done in our previous conversations, the applicant’s response was focussed on his use of the word "gin". That is, he continued trying to justify his use of the word by pointing out the wider context of his work with the Aboriginal community.

I felt like he was missing the point. While the use of a racist term like “gin” was extremely concerning, it was the context of his entire statement and the sexist and degrading language he used to talk about women that made the conduct so severe in my eyes. Even if he hadn’t used the term “gin” I would still have considered the statement to be highly inappropriate as it was disrespectful towards women. I was particularly concerned with the applicant’s comment in the response that this was “a funny story told many times in mixed company.”

I also felt like the applicant failed to appreciate that you simply cannot say something like that in the workplace; the intention behind the comments is irrelevant, it is about how the conduct impacts on others in the workplace.

There was nothing raised by the applicant in his response that made me consider that it would be inappropriate to terminate his employment.

…

As outlined in the Report, I found that Mr Burrows had made the second offensive statement in Mr Harkins’ complaint and had, therefore, breached the Discrimination Policy. On that basis, disciplinary action was taken against him and, given that he had also made an offensive and inappropriate remark during the Incident, Mr Burrows’ employment was terminated by Chevron on 17 October 2016.

In contrast to Mr Burrows and the applicant, while Mr Lepine was a participant in the conversation, none of the witnesses had identified him as having made any of the offensive statements. However, it was clear that he had not attempted to shut down the offensive conversation, which is what Chevron expects its employees to do, and therefore I found that he had also breached the Discrimination Policy. Ultimately, Mr Lepine was provided with a first and final written warning in relation to his participation in the Incident, given that Chevron considered that his conduct was less severe than either Mr Burrows’ or the applicant’s had been.”

[80] Under cross examination Ms Johnston identified the email to her from Mr Camis Smith (Mr Smith), dated 29 September 2016, which attached Mr Harkins’ Complaint. 16 Mr Smith’s email reads as follows.

“Hi Kate,

Further to our discussion this morning regarding the BWI incident yesterday, please see formally documented statement from Mike below. Given the nature of what occurred I can now understand Mike’s emotional state.

The incident is a demonstration of seriously entrenched racist attitude of certain individuals from a dominant culture in our community (and working for us) toward a group of people in our society who they think “matter to no-one”. I think a formal investigation and not a “get them together, and tell a bus load of employees- this is unacceptable” is not what is required here. We are dealing with something far more serious.

Cheers Camis”

[81] Her evidence is that Mr Smith, as the Aboriginal Employment Manager, is also within the HR Team and though he and Ms Johnston are in different parts of HR he is senior to her in terms of pay-scale. After forwarding Mr Harkins’ Complaint Mr Smith played no part in the Investigation.

[82] Ms Johnston denied the opinions Mr Smith expressed influenced her Investigation or report or recommendations.

[83] Ms Kaye Butler (Ms Butler) is the General Manger Human Resources of Chevron and was the only person amongst the Chevron management who collectively made the decision to dismiss Mr Solin that gave evidence. 17 Relevant extracts from her statement are set out below.

“I first became aware of an incident involving the applicant in around late September 2016. This incident was brought to my attention by Camis Smith, Aboriginal Employment Manager. While this was not the general manner in which a personnel matter is-brought to my attention, this was not an unusual way for this issue to be escalated to me given Mr Smith is in my HR team and I sponsor Aboriginal Employment initiatives for Chevron Australia.

On or about 28 September 2016, Mr Smith came to my office and told me that there had been an incident on Barrow Island where a group of employees had been overheard on a bus from the accommodation camp, Butler Park, to the worksite using racist and sexist language and generally engaging in an inappropriate and offensive conversation.

Mr Smith told me that an Indigenous employee, Michael Harkins, had overheard the conversation and had found it offensive and upsetting and had reported the incident to his supervisor. He also said that Mr Harkins had been deeply impacted by the incident. Mr Smith told me that he also was upset by the incident, and hearing about the conversation the employees on the bus had engaged in had offended him as a man and as an Aboriginal person.

Mr Smith said that he had brought this incident to my attention directly as he wanted to ensure that it wasn't overlooked or swept under the rug. I assured Mr Smith that I take allegations like that very seriously and I would ensure that it would not be ignored. I then said words to the effect of “you need to understand there will be an investigation”, as I wanted him to ensure that the complainant knew that we would be conducting a formal investigation.

…

While I was not involved in Ms Johnston's formal investigation, I was given regular updates in relation to the progress of the investigation during discussions with Ms Harwood and Ms Johnston over the next few weeks. As per our normal grievance investigation process, I was aware that Ms Johnston was interviewing all of the witnesses to the incident, including Mr Harkins and the applicant.

On or around 12 October 2016, I was provided with a copy of Ms Johnston's completed investigation report (Report).

After reviewing the Report, I formed the view that the conduct engaged in by the applicant and the other participants in the incident was severe. The behaviour was completely inappropriate, and a breach of Chevron's policies designed to ensure that we have a respectful and inclusive workplace, free of discrimination and harassment, particularly Policy 277 Discrimination, Harassment and Bullying (Discrimination Policy).

I formed this view because of the degrading topics and language about women used by the applicant and Laurie Burrows, one of the other participants in the conversation, particularly the use of the term “gin” to refer to Aboriginal women. I grew up in rural Australia, and around Aboriginal people, so I was well aware of this term. It is probably the most offensive word you could use to describe an Aboriginal woman and is generally used as a way of degrading Aboriginal women.

From the Report, I was aware that the participants in the incident had tried to excuse the behaviour as just being something along the lines of a "joke amongst friends". I disagreed with this characterisation. I thought it was inappropriate conversation on a bus on the way to work at 5am in the morning, in the presence of other employees who could have been Aboriginal or female, or who could have just been offended and insulted at hearing that type of language used in the workplace.

I have worked in the resources sector all of my working life and times have changed. While it may once have been acceptable to use this type of derogatory language and just excuse it as a “joke among mates”, it is something that Chevron works very hard to eliminate from its workplace. Even if I had heard that conversation 20 years ago, I would have been disgusted and I thought we'd come a long way since then.

The fact that the conversation was overheard by an Aboriginal person, and he had been deeply offended by it, exacerbated the severity of the conduct, but it wasn't the sole reason I thought it was so serious. If a non-Indigenous employee had overheard the conversation and made the same complaint as Mr Harkins, I would still have formed the view that the behaviour was serious, inappropriate and well below the standard of behaviour with which Chevron expects its employees to comply.

I thought that Chevron could not be seen to condone this type of behaviour.

From my discussions with Ms Harwood and Ms Johnston, I am aware that Ms Johnston and Murphy Bowers, Barrow Island Asset Manager, had a meeting with the applicant on 13 October 2016 during which the applicant was informed of the results of the investigation and asked to provide a written response before a decision was made regarding any disciplinary action to be taken against him.

On or about 14 October 2016, Ms Johnston forwarded me an email sent by the applicant with his written response.

I considered that there was nothing raised by the applicant in his response that affected my initial view that it was appropriate to terminate his employment based on the severity of his conduct. I thought that the applicant had not shown any genuine remorse, as he had continued to try and justify his use of the word "gin", without addressing the other offensive aspects of his conduct. I also felt that the applicant's assertions that he had been an advocate for Aboriginal people made his actions even more insulting. I thought he should have known better than to use that sort of language.

While the applicant’s comments may not have been directed towards Mr Harkins personally, I thought that the comments were degrading, inappropriate and offensive, and I understood why Mr Harkins had been so upset by the incident.

…

On Saturday, 15 October 2016, Ms Johnston, Mr Bowers and I had a call to make a final decision in relation to the disciplinary action to be taken against the applicant.

During this call, I explained to Ms Johnston and Mr Bowers that I had discussed the matter with senior management and that we were aligned in our proposed approach. I told them that, in our view, the appropriate response to the applicant's conduct, given there was no mitigating circumstances presented, was termination of employment.

We then talked through whether there was anything that had been overlooked that might change our minds, and determined that there was nothing we had overlooked.

We also discussed whether we could take some lesser form of disciplinary action against the applicant, other than termination of employment. One option was to remove eligibility to receive the Chevron Incentive Payment (CIP) for the current year. I said that we had to ensure that the disciplinary action reflected that Chevron would not accept offensive and inappropriate behaviour by its employees and given that the CIP is an at risk payment that depends on a range of factors, including the overall performance of the business, the receipt of this payment could not be guaranteed prior to its award.

Mr Bowers then said words to the effect of "my view is there is no other option", referring to terminating the applicant's employment. Ms Johnston told me that she also agreed with this outcome.

I am aware, from later discussions with Ms Johnston, that the applicant's employment was terminated on 17 October 2016.

…

I don’t believe that the applicant’s behaviour demonstrates any acceptance or acknowledgement of the fundamental values of Chevron regarding inclusion, tolerance and diversity. The behaviour demonstrates a complete disregard for these values and the management of Chevron has lost all confidence in the applicant's ability to align with our values. I believe that having the applicant back in the workplace would put our current workforce, particularly women and aboriginal employees, at risk of further abuse.”

[84] Under cross-examination Ms Butler agreed she has never met Mr Solin.

[85] Ms Butler’s evidence is that the decision to dismiss was based on Ms Johnson’s Investigation report and the discussions or briefings she had had with Ms Johnston and with Ms Johnston’s supervisor and other managers. 18 She also read Ms Johnston’s notes.19

[86] With respect to Ms Butler’s view that having Mr Solin “…back in the workplace would put our current workforce, particularly women and aboriginal employees, at risk of further abuse.” 20 Ms Butler agrees she has not spoken to any of the other Aboriginal employees Mr Solin has worked with and has long-standing relationships with and her evidence was that “…the behaviour happened, there is no excuse for that behaviour, and Chevron will not tolerate that behaviour in the workplace.”21 Ms Butler had formed the view that Mr Solin had engaged in racist behaviour that warranted dismissal and this was intolerable.22

[87] Ms Butler agreed that the use of the word “nigger” in the workplace is absolutely inappropriate and she would sack anyone who used that term if she could. 23

[88] Her evidence was that she did not know who Mr Uren was and she was unaware of an incident where he used the word “nigger” in front of senior managers.

[89] Ms Butler did not believe that with Mr Solin’s record of working with Aboriginal people he would think that what he said would not be offensive to Aboriginal people and especially female Aboriginal people. 24

[90] Her evidence was that in any event the subject matter of the conversation that Mr Solin was having, regardless of whether the word “gin’ was used or not, was totally inappropriate and totally offensive. Her evidence was that she took offence to the whole conversation. 25

[91] Ms Butler did not accept that Mr Solin was apologetic or that he had shown any remorse. 26

[92] Whilst there is some disagreement between the witnesses as to precisely what Mr Solin and Mr Burrows said whilst on the bus on balance I find they said the following in this sequence,

Mr Burrows:

“Roebourne! Shit that brings back memories of the silly old Slavs trying to pick up the gins on the road into Roebourne.”

Mr Solin:

“We went to the Roebourne Races one year. My mate and his missus, who was a young gin, were fucking on the beach at Roebourne after the races, the tide went out and he had to stop because he was getting his arse chewed by sand-flies and he left her on the beach.”

Mr Burrows:

“I used to see gins hitchhiking from place to place and men would pick them up and fuck the bums off them and dump them in the middle of nowhere to make their own way back into town.”

[93] I also find that after these statements the men laughed. Both statements were recounting events that occurred in the mid 1970’s.

The Applicant’s submissions

[94] The dismissal relates to the Applicant’s breach (the breach) of the Respondent’s Discrimination Policy.

[95] The dismissal was unfair within the meaning of section 385(b) of the Act in that:

(a) it was unreasonable or unjust because:

(i) the conduct of the Applicant when viewed in context and by reference to the Respondent’s policies should not have resulted in his dismissal;

(ii) the Respondent failed to reasonably and properly consider the explanation provided by the Applicant for the breach, the conclusions reached during its Investigation, any mitigating circumstances and other relevant matters which weighed against dismissal.

(b) it was harsh because:

(i) despite the breach, there were other disciplinary measures that were open and more appropriate;

(ii) the dismissal was in the circumstances a disproportionate response to the breach;

(iii) the personal and financial effects of the dismissal upon the Applicant are significant and unable to be mitigated.

[96] The Incident giving rise to the Applicant’s dismissal was an inappropriate conversation on a bus (the conversation), involving three participants; the Applicant, Mr Lepine and Mr Burrows. There were two parts to the conversation;

(i) a statement by Mr Burrows; and

(ii) a statement by the Applicant.

[97] Wrongly or rightly the conversation was of a type which occurs between employees in workplaces around Australia.

[98] The evidence establishes the conversation albeit inappropriate and which the Applicant has conceded was in breach of the Discrimination Policy was overheard by two employees of Aboriginal descent; Mr Jackamarra and Mr Harkins.

[99] The Respondent never inquired whether there were any women on the bus. Mr Harkins was the only complainant.

[100] Following the Incident, Mr Jackamarra informed the Applicant that he and Mr Harkins had overheard the conversation and that Mr Harkins was offended.

[101] It is the Applicant’s evidence that after Mr Jackamarra brought this to his attention, he met with Mr Harkins and apologised. The Applicant’s conduct by approaching Mr Harkins is consistent with someone who had attempted to make or made an apology, even though ultimately, the apology was not accepted.

[102] It is submitted the Commission should conclude the Applicant is an honest and reliable witness and is genuinely remorseful for the breach. His demeanour was genuine and the explanation he provided for his behaviour was plausible.

[103] The unreserved apology which was contained in the Applicant’s formal response of 14 October 2016 was not materially different to the apology Mr Burrows gave in his written reply and yet the Respondent disputes the Applicant was apologetic and remorseful for his conduct.

[104] It was apparent from the Applicant’s evidence that although he concedes he took part in an inappropriate conversation, he did not at the time appreciate that his use of the word “gin” was so offensive that it would constitute a breach of the Discrimination Policy. This aspect of the Applicant’s evidence was not challenged on cross examination and is not at odds with evidence Mr Jackamarra provided to Ms Johnston during the Investigation. 27

[105] The Applicant submits it is open to the Commission to find:

(a) the Applicant’s evidence was consistent with his witness statement;

(b) the Applicant admitted he engaged in inappropriate conduct and his early admission of this behaviour should be viewed to his credit;

(c) the Applicant in the answers he provided was not evasive and at all material times co-operated with the Respondent following the breach and in the lead up to his dismissal, even to his detriment;

(d) the Applicant had an unblemished work record of at least two years service with the Respondent;

(e) the matters raised in the witness statements of Mr Harkins, Ms Butler and Ms Johnston (including the contents of her notes on what the Applicant’s colleagues said occurred) were for the first time put to the Applicant in the context of these proceedings rather at the time the Applicant’s conduct was the subject of an Investigation; and

(f) there were no prior issues with the Applicant’s performance or conduct, which is consistent with a view the Applicant’s behaviour was out of character.

[106] Importantly, the Applicant’s breach of the Discrimination Policy should not be viewed as a deliberate or intentional. Contraventions of this type are of a different gravity and in the context of disciplinary matters are viewed more seriously.

[107] A dismissal for a valid reason within the meaning of section 387(a) of the Act is where the termination is for a sound, defensible or well-founded reason that can be justified on an objective analysis of all of the relevant facts.

[108] The reason cited for the Applicant’s dismissal was his breach of the Discrimination Policy. It is the nature of the breach which is important.

[109] What is common to all of the recollections of the Incident is significant. The

Applicant’s breach involved his participation in a conversation that was overheard, rather than an intentional and malicious taunt that was directed at Mr Harkins.

[110] The Applicant submits this difference is significant because while the Applicant’s conduct may on an objective analysis, have justified disciplinary action, his conduct having regard to recent authority and all of the relevant circumstances, was not of the same gravity as conduct which is calculated and intended to harm. 28

[111] In the circumstances, the Commission should conclude an apology was made albeit the apology was not accepted by Mr Harkins.

[112] The Applicant’s evidence in the proceedings was largely consistent with his witness statement.

[113] In addition, the Applicant notes Mr Harkins’ recollection of the order in which events played out following the conversation, the timing of his meeting with the Applicant, when he sent his emails and when he spoke to his Supervisor Mr Payne, was not consistent with the order he provided in his witness statement.

[114] In the circumstances, it would be reasonable for the Commission to conclude Mr Harkins was mistaken about the time which Mr Harkins’ says the Applicant approached him. It would also be reasonable to conclude the Applicant apologised but that because Mr Harkins did not accept it, Mr Harkins now holds the view there was no apology.

[115] Similarly, the order which the Applicant says the conversation unfolded on the bus should also be preferred. Mr Burrows who was a participant in the conversation provided evidence which corroborates the order in which the Applicant says the conversation occurred.

[116] The significance of this is important as the case which the Respondent now seeks to make against the Applicant is that he incited and encouraged Mr Burrows to make the statement he made in the conversation. It is submitted this allegation was not squarely put to the Applicant during the Investigation or in cross examination in the manner it ought to have.

[117] Unfairness arises in the Respondent’s failure to properly consider and/or have regard to a range of relevant factors including:

(a) the explanation provided by the Applicant for the breach which was credible and believable;

(b) the Applicant’s further information/explanation, which he attempted to provide in the meetings on 13 and 17 October 2016, but which the Respondent refused to consider because it took the view the Investigation was completed; 29

(d) character evidence and the views of other Aboriginal employees (including Mr Jackamarra) which weighed against a decision being made to dismiss the Applicant; 30

(e) it is apparent the breach was not deliberate or intentional;

(f) any mitigating circumstances which weighed against dismissal, including demonstrable remorse and contrition on the part of the Applicant;

(g) the conduct was, when viewed in the context of the Applicant’s previous conduct and employment history, completely out of character;

(h) company training, policies and procedures were not so clear to the extent they would have left the Applicant in any doubt that his use of the word “gin” would have been a breach of the Discrimination Policy or that a crude conversation in a completely male audience was inappropriate; 31 and

(i) there were other disciplinary measures that were open and more appropriate and other ways to address the Applicant’s contravention of the Discrimination Policy even where management took the view the only response to the Applicant’s behaviour was dismissal.

[118] The Respondent is a large multinational employer with a dedicated human resources department and detailed human resource management policies. The Applicant submits despite the Respondent’s size and the claimed seriousness of the allegations and consequences for the Applicant:

(a) the entire investigative process was carried out over the telephone;

(b) the Applicant was not provided with all of the relevant information, (including precise details of what he was alleged to have said and the order in which he said it) to be able to provide a considered response to allegations about his conduct;

(c) despite the allegations of serious misconduct now levelled at the Applicant a relatively junior staff member was tasked with responsibility to conduct the Investigation into the Applicant’s and the other employee's alleged conduct;

(d) important information which ought to have been considered by the ultimate decision maker despite the Respondent’s resources was not given any weight;

(e) Ms Butler (who was the ultimate decision maker) and other senior managers who made the decision to dismiss the Applicant, took no direct part in the Investigation and did not at any stage meet with the Applicant before making their decision to dismiss the Applicant;

(f) the decision maker and other senior managers allowed their personal views to influence the decision to dismiss the Applicant. It is reasonable to conclude the Applicant was pre-judged by reference to views which were formed about the Applicant’s conduct at a very early stage; 32

(g) Given the size of the Respondent, there were alternatives to dismissal which included transfer, demotion and/or a final warning that:

(i) were available;

(ii) ought to have been reasonably considered but were not; and

(iii) should have been applied instead of dismissal.

[119] Under section 387(h) of the Act the Commission must take into account any other matters which it considers relevant.

[120] The Applicant contends relevant factors which include the following ought to have carried more weight in the Respondent’s decision making process:

(a) the Applicant’s age (59);

(b) his reasonably lengthy and unblemished service with the Respondent;

(d) the Applicant’s remorse and contrition;

(e) the harsh impact of dismissal on the Applicant;

(f) his apology and preparedness to take part in mediation;

(g) the views of the Applicant’s workmates, including Mr Jackamarra.

[121] The conduct the subject of the present application bears striking factual similarities to that which was in issue in Gary McDermott v BHP Coal Pty Ltd [[2016] FWC 6935] (McDermott) and Jodie Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [[2016] FWC 4129] (Mt Arthur).

[122] Like the cases in McDermott and Mt Arthur the Applicant remains, as he was immediately following the breach, genuinely apologetic and remorseful for his conduct.

[123] The Applicant, like the employees who made the unfair dismissal applications

in McDermott and Mt Arthur, has an otherwise exemplary employment record and his dismissal was as a result of his involvement in a “one off foolish incident”.

[124] The breach, having regard to the Applicant’s work history, which is apparent from his witness statement, appears completely out of character and consistent with the behaviour of an employee who like his colleagues did not appreciate or was even oblivious to the idea his conduct was so serious as to warrant the response from management which followed.

[125] In Mt Arthur, whilst Commissioner Saunders acknowledged the applicant in that matter, who had made comments over a “two way channel”, which were offensive and inappropriate, he did not categorise his conduct overall as being at “the high end of the scale of serious misconduct”. This was because the comments the applicant made were not directed I targeted at any particular employee or group of employees or with any malicious intent. The same is to be said of this case.

[126] The similarity in this case is the offending conduct which was, as in Mt Arthur, not intentionally directed at any particular employee or group of employees. The Applicant’s conduct was, as in Mt Arthur, an “overheard” conversation. The Applicant’s description of his conversation as being “closed” was intended to convey no higher implication or point than this. Mr Harkins overheard a conversation between other employees to which he was not party.

[127] In the circumstances and because of the factual similarities with the cases referred to, the Applicant submits this matter is a case in which, whilst it is reasonable for there to be a demonstrable sanction for the Applicant’s conduct, it should not have been dismissal.

[128] Although the applicant in McDermott was successful in obtaining an order for reinstatement, the Commission declined to make an order restoring lost remuneration. The Commission concluded the loss of remuneration was of itself sufficient punishment and would “act as a deterrent” for inappropriate behaviour of the kind in issue.

[129] At paragraph [89] of Mt Arthur, the Commission also declined to make an order for lost pay, with the Commission concluding the applicant “must bear a substantial degree of responsibility for the financial consequences of his dismissal. The absence of an order for lost pay will also reinforce to Mr Goodall that his conduct during the shift was inappropriate and must not happen again.”

[130] It is submitted although this is a matter, whereas in McDermott and Mt Arthur, there may have been a valid reason for disciplinary action against the Applicant, dismissal was a disproportionate response to his conduct.

[131] An order for reinstatement if made in similar terms to those which were made in McDermott and Mt Arthur would similarly, strike a balance between the Respondent’s obligation to provide a workplace free from unacceptable conduct and the company’s right to impose a disciplinary penalty for such behaviour.

[132] The Applicant has by his dismissal suffered a financial penalty. The stress, embarrassment and the tag which attaches to his conduct (particularly in the context of his involvement with Aboriginal people over an extended period of time) should not be understated either.

[133] The Applicant seeks an order for reinstatement under section 390 of the Act.

[134] Reinstatement is the Act’s primary remedy for unfair dismissal and should be ordered if it is sought, unless the Commission is satisfied on proper grounds that reinstatement is not appropriate. In DP World Sydney Limited [[2013] FWCFB 9230] at [138] the Full Bench of the Commission said:

“The language of s. 390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”

[135] The alternative remedy, compensation, is not available unless reinstatement is inappropriate.

[136] Any suggestion the Applicant’s conduct has resulted in a loss of trust and confidence making reinstatement both inappropriate and impracticable, having regard to the circumstances of this case is, the Applicant submits, neither sound nor rationally based.

[137] In Fletcher v Commonwealth of Australia (Australian Federal Police) [[2007] AIRC 60] at [86], the Full Bench of the Industrial Relations Commission remarked:

“The Commission ought to be cautious in considering an employer’s claim that they cannot work again with a dismissed employee, as this might inappropriately frustrate the relief of reinstatement provided by the Act.”

[138] The Applicant submits there would be no basis on which to find reinstatement is inappropriate. Following the completion of the Investigation, but prior to his dismissal, the Applicant returned to BWI where reinstatement, even conditional would be appropriate.

[139] By way of relief the Applicant seeks an order for reinstatement, ancillary orders for continuity of service and any other order which the Commission deems appropriate.

[140] An order for compensation from the date of dismissal to reinstatement is not expressly sought. If reinstatement is ordered, the awarding of compensation from the date of the Applicant’s dismissal to his reinstatement would be inconsistent with the ratio in McDermott and Goodall.

[141] If however the Commission concludes reinstatement is impracticable, there is evidence of reasonable efforts on the part of the Applicant to mitigate his loss.

[142] Additionally, the Applicant submits if compensation is to be ordered, further evidence and/or submissions should be filed by the parties on this point so the quantum of any actual loss may be clarified.

The Respondent’s submissions

[143] The Respondent dismissed the Applicant on 17 October 2016, on the basis of its findings, after the Investigation, that on 28 September 2016 while travelling on a bus on BWI with other employees of the Respondent, he had been involved in a conversation during which racially and sexually offensive statements concerning Aboriginal women had been made, and had thereby breached the Respondent’s Discrimination Policy.

[144] In particular, the Respondent found that, at about 5.00 a.m. on 28 September 2016, the Applicant had been a passenger on a bus that transported employees of the Respondent from their accommodation at Butler Park on BWI to the Respondent’s Production Onshore Facility at BWI, when he had engaged in a conversation with two of his workmates, Mr Burrows and Mr Lepine. The Respondent found that, during the conversation, the Applicant had said to Messrs Burrows and Lepine that a mate of his “had once fucked a gin on a beach, and during sex was bitten by sandflies and thought to himself ‘Fuck this, I’m getting out of here’, and left her stranded on the beach.” (the first statement).

[145] The Respondent also found that, after the Applicant had made the first statement, one of the other people involved in the conversation had said that he, or someone he knew “used to see gins hitchhiking in rural areas, and he would pick them up, fuck the bums off them, and then dump them in the middle of nowhere.” (the second statement).

[146] Also on the bus that morning were two Aboriginal employees of the Respondent, Mr Harkins and Mr Jackamarra. They both heard the first statement and Mr Harkins also heard the second statement. Mr Harkins was deeply offended by what he heard. At that time, Mr Harkins did not know the Applicant and did not know that he had made the first statement. However, he spoke to Mr Jackamarra later on 28 September 2016 and Mr Jackamarra, who knew the Applicant, told Mr Harkins that it had been the Applicant who had made the first statement. Mr Harkins told Mr Jackamarra that he had also heard the second statement and was also very upset by that.

[147] Later on 28 September 2016, Mr Jackamarra brought the Applicant to meet Mr Harkins to see if the Applicant and Mr Harkins could resolve their differences about what had happened on the bus. Mr Harkins and the Applicant discussed the matter but Mr Harkins was not satisfied by what the Applicant said to him during that discussion and, on 29 September 2016, Mr Harkins lodged a Complaint with the Respondent about the Applicant’s conduct and also about the conduct of Messrs Burrows and Lepine.

[148] Following the Investigation the Respondent found that the Applicant had made the first statement and had thereby breached the Discrimination Policy and terminated his employment. The Respondent also found that Mr Burrows had made the second statement, and had thereby breached the Discrimination Policy and terminated his employment. The Respondent also found that Mr Lepine had participated in the conversation and had thereby breached the Discrimination Policy and gave him a first and final warning.

[149] In his evidence, the Applicant effectively admitted that he made the first statement. In his witness statement he said that, during the bus trip on 28 September 2016, he had a conversation with Messrs Burrows and Lepine, during which he had said words to the effect of “We went to the Roebourne races one year. My mate and his missus, who was a young gin, were fucking on the beach at Roebourne after the races, the tide went out and he had to stop because he was getting his arse chewed by sandflies.”

[150] On the basis of that evidence, the Respondent submits the Commission should find that the Applicant made the first statement on the bus at 5.00 a.m. on 28 September 2016.

Did the first statement constitute misconduct?

[151] That evidence enables the Commission to find that, when the Applicant made the first statement, he was aware that there could have been Aboriginal people and/or women on the bus and that those Aboriginal people and/or those women could have heard the first statement. On that basis, the Commission should also find that the Applicant made the first statement reckless, not caring who heard it, and that it was heard by Mr Harkins and by Mr Jackamarra, who were both Aboriginal men.

[152] The parties agree that the term “gin”, used by the Applicant in the first statement, is a racial slur used to refer to an Aboriginal woman in a derogatory manner. Mr Harkins’ evidence was that the term is racist, offensive and derogatory. He considered that by using the term “gin”, the Applicant was showing contempt for all the women in his (Mr Harkins’) family.

[153] The Applicant’s evidence was that, when he used the word “gin” in the first statement, he did not believe that it was derogatory, unless addressed directly to an Aboriginal woman. However, he said that he subsequently discovered that it was a derogatory term, whenever used, and in his evidence at the hearing, accepted that it had been inappropriate for him, in a conversation in the workplace, to use the word “gin”, and to talk about a man “fucking” or “rooting” a “gin”.

[154] The Commission should find that the term “gin” is a racial slur used to refer to an Aboriginal woman in a derogatory manner, and should find that the first statement was seriously derogatory of Aboriginal women, in particular, and of women, in general. The Commission should also find that it was completely inappropriate for the Applicant to be telling stories, on the bus, about a man “fucking” or “rooting” a “gin”. The Commission should find that, by making the first statement, in the circumstances in which he made it, the Applicant was guilty of serious misconduct in the workplace.

[155] The Commission should accept the evidence of Mr Harkins, in preference to the evidence of the Applicant, and should find that Mr Burrows made the second statement, after the Applicant had made the first statement. It should be found that both the Applicant and Mr Burrows were telling the stories in an attempt to be humorous and that they and Mr Lepine all laughed after hearing the stories, as described by Mr Harkins in his evidence.

[156] The Respondent submits the Commission should find that, by making the first statement, the Applicant incited and encouraged Mr Burrows to make the second statement and that that also constituted serious misconduct by the Applicant in the workplace.

Did the Applicant apologise to Mr Harkins during their meeting on 28 September 2016?

[157] Mr Harkins gave clear evidence that, during his meeting with the Applicant on 28 September 2016, the Applicant had said to him that he did not realise that the term “gin” had a derogatory meaning and that it was a term commonly used by Aboriginal people with whom he had grown up. Mr Harkins said that, at no point during the meeting, did the Applicant say he was sorry or apologise to him, but just tried to justify his language. Mr Harkins said that, for that reason, he lost all respect for the Applicant. That was obviously one of the main reasons why he ultimately decided to make a formal Complaint.

[204] Before reviewing these matters it is helpful to consider the Full Bench decision of Mt Arthur Coal Pty Ltd T/A Arthur Coal v Jodie Goodall 37 (Mt Arthur v Goodall). In this case the Full Bench considered an appeal against the decision of Commissioner Saunders. The case concerned the dismissal of an employee for statements he made in the workplace which were contrary to his employer’s policies. The Full Bench summarised the facts and then the decision of Commissioner Saunders relevantly as follows,

“Factual background

[4] Mr Goodall commenced employment with Mt Arthur Coal on 16 May 2011. The incident which caused his dismissal occurred in the early morning of 11 November 2015 when Mr Goodall was drawing towards the end of a 12.5 hour night shift during which he had operated heavy equipment at Mt Arthur Coal’s mine site in the Hunter Valley. Prior to that date Mr Goodall had an exemplary employment history, and his misconduct on that date constituted the only blemish on his record prior to his dismissal on 9 February 2016.

[5] Mr Goodall’s misconduct came to the attention of Mt Arthur Coal’s management as a result of an investigation into the use by employees and contractors of Channel 6 of its radio system as a “chat channel” during the night shift of 10-11 November 2015, and the allegation that some employees and contractors had used offensive language in the course of doing so. Channel 6 was meant to be used for training purposes only, and employees and contractors working in the pit were meant, as a safety measure, to remain contactable at all times on radio Channel 1.

[6] The investigation identified that a large number of employees had used Channel 6 as a “chat channel” on the night shift in question. This included Mr Goodall, who had been on the channel for a total of 110 minutes during his 12.5 hour shift. More seriously, a number of employees including Mr Goodall were recorded as having said a number of things on Channel 6 which were regarded by Mt Arthur Coal as inappropriate. In the Decision the Commissioner found that Mr Goodall had made the following remarks during the shift on Channel 6:

(1) At approximately 4:39 am on 11 November 2015, in response to comments by a colleague about the “rear end” of his truck getting “banged up”, Mr Goodall said “that’s no good getting your rear end banged up” and “Parish would like it”.

(2) At approximately 4:52 am on 11 November 2015, when talking about a colleague, Mr Goodall stated that “he’d probably like a good teabagging”.

(3) At approximately 4:53 am on 11 November 2015, during a conversation about Volkswagen Beetle cars, Mr Goodall stated that “that’s what, um, [Azn] calls his beetle, a dung beetle”.

(4) At approximately 5:10 am on 11 November 2015, in response to a question about what book a colleague was reading, Mr Goodall stated “that book on 50 ways to eat cock”.

(5) At approximately 5:10 am on 11 November 2015, in response to the comment “since when have you been covering your arse, Bounder”, Mr Goodall stated “probably when you’re walking round in the bathhouse Parish”.

(6) At approximately 6:09 am on 11 November 2015, when talking about a colleague at the gym, Mr Goodall stated “have your jatz crackers fall out?”

[7] Additionally, Mr Goodall made the following comments during the course of a conversation on Channel 6 with two other operators (which are identified as Speaker 4 and Speaker 5) as follows (with Mr Goodall’s comments in bold):

“SPEAKER 5: Actually just on that, sorry to change the subject a little bit here. Hey slim are you… you goin to that to that Reclaim Australia rally?

MR GOODALL: Wouldn’t mind goin to one but depends if we’re workin

SPEAKER 5: No me missus she’s like we’re… we’re goin to the one in em Cessnock there next Sunday they wanna build that mosque there in Kurri Kurri

MR GOODALL: I got a car show to go to at Dungog on Sunday I think but um yeah otherwise I’d go to it

SPEAKER 4: If I went to them sorta shows there… them Reclaim things they just get outta hand ey and I’ll end up getting locked up

SPEAKER 5: Oh man I can’t I can’t oh yeah I can’t handle it how Australians get walked on all the time now. I wish we had that bloody Putin bloke from Russia running our country

MR GOODALL: It’s not just Australia it’s friggin everywhere everyone’s just bend over backwards for the Muslims

SPEAKER 5: Did you see that thing on 60 Minutes? Do you watch 60 Minutes Sunday night?

MR GOODALL: Na didn’t no what’s it about Putin?

SPEAKER 5: No they had this couple this two white Australian couple and um they met when the Cronulla riots were on anyway they they tried to get away form it like the Cronulla riot side of it, went to this pub. That night they didn’t know what happened during the day they’re walking home and 6 Lebs jumped out and bloody like em stabbed old mate and tried to bloody bash his missus or the chick he met and all this shit ey. Crazy

MR GOODALL: Ah they had 1400 years of bloody inbreeding so they gotta be fucked up

SPEAKER 4: They should have do what the national parks and wildlife do every year and what the government should. You know the National wildlife put out tags to professional shooters and just cull roos. They should the government should just put out tags to professional hitmen and just cull dirt bag Australians or you know, people that don’t deserve to be in this country

SPEAKER 5: Oh Dez? You’re all over it I’m hearin ya. No one the problem is the worst is people get too scared to say anything and that’s why I take my hat off to that Reclaim Australia. They’re not racist they’re not talkin about race they’re talkin about the religion and they’re sayin everyone’s had a gut full of it. We’re just a complete gutful of how they just think they can just run the whole show change our way of life it’s crazy

MR GOODALL: Exactly yep.”

[8] It was Mr Goodall’s comments as part of the above conversation which attracted the most attention in the appeal. These comments were not private to the participants, but could be heard by any employee or “contractor” (that is, an employee of a business contracted to provide labour to Mt Arthur Coal) on the night shift of 10-11 November 2015 who was tuned into Channel 6.

[9] It was not in dispute in the appeal that Mr Goodall was aware of and had been trained in the Code of Business Conduct (Code) of BHP Billiton, of which Mt Arthur Coal is a subsidiary. The Code prohibited behaving in a way that was “offensive, insulting, intimidating, malicious or humiliating”, making “jokes or comments about a person’s race, gender, ethnicity, religion, sexual preference, age, physical appearance or disability”, assuming that “acceptable behaviours are the same for every culture”, and the “use of BHP Billiton resources to distribute offensive materials”, and required employees to “treat everyone with respect and dignity” and “be prepared to adapt your own behaviour in response to feedback or when considering cultural considerations of another operational country”. There was also a separate requirement in Mt Arthur Coal’s “Surface Transport Management Plan” (STM Plan) to ensure that usage of the radio system was in accordance with the Code.’

…

The Decision

[20] In the Decision the Commissioner, after addressing the preliminary matters required to be considered under s.396 of the Fair Work Act 2009 (FW Act), turned to the matters he was required to take into account under s.387. In relation to s.387(a), the Commissioner found that there was a valid reason for Mr Goodall’s dismissal relating to his conduct on two bases. The first was that, while the Commissioner accepted that Mr Goodall had engaged in conversations on Channel 6 in order to combat fatigue and stay alert towards the end of a long night shift 5, his conduct in that respect was nonetheless in breach of Mt Arthur Coal’s STM Plan and represented a risk to safety.6 The second was that certain comments made by Mr Goodall during those conversations (which we have earlier set out) were inappropriate and in breach of the Code and the STM Plan. In this respect the Decision stated:

“[40] The comments made by Mr Goodall set out in paragraph [35] above breached his obligations under the Code and the STM Plan in the following ways:

(a) he made comments which may reasonably be viewed as offensive;

(b) he demonstrated a lack of respect for other persons;

(c) he made comments which were sexual in nature and may reasonably be viewed as offensive; and

(d) he made comments and used language which may have offended people of a particular race/religion and which expressed and incited derogatory views of people of a particular race/religion.

[41] Mr Goodall’s conduct in making inappropriate comments over the two-way radio system and thereby engaging in substantial breaches of his employer’s policies gave Mt Arthur a sound, defensible and well founded reason for dismissal related to his conduct. Accordingly, I find that Mt Arthur had a valid reason to dismiss Mr Goodall related to his conduct in making inappropriate comments on the two-way radio system during the Shift.” (Reference omitted)

[205] Sections of the Full Bench decision relevant to this application are set out below,

“[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.

[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 Limited35 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.

…

[60] In any event, we consider that the evidence demonstrates that Mr Goodall only engaged in “incitement” in a confined sense. Mr Goodall and the two other persons who engaged in the anti-Muslim conversation may be said to have incited each other, but only to confirm and reinforce the bigoted views which they already held. Mr Goodall was clearly recklessly indifferent to the fact that what he and the others were saying could be heard by anyone tuned into Channel 6 at the time, which was potentially a large number of persons, but we do not consider that the evidence supports the proposition that Mr Goodall intended to “incite” such third persons.

[61] Accordingly we consider that there was nothing illogical or irrational about the Commissioner’s assessment of the seriousness of Mr Goodall’s conduct.

…

[70] The second alleged error was that the Commissioner found that Mr Goodall was genuinely contrite during the investigation. We do not consider that there was any such error once it is understood that what Mr Goodall had to apologise for was not his anti-Muslim opinions, which he was entitled to hold however bigoted they were, but for expressing those views at work on a radio channel that was accessible, potentially, to a large number of fellow workers. Mr Goodall apologised for his conduct at the initial discussion with the Open Cut Examiners in November 2015, at the first investigation meeting with Mr Redman and Mr Shadbolt on 8 January 2016 and in the second meeting on 19 January 2016, as well as in his subsequent response to the show cause letter. More importantly Mr Goodall’s conduct demonstrated his contrition and acceptance of wrongdoing; after the matter was first raised with him by the Open Cut Examiners in November 2015, he did not engage in any conversation on Channel 6 thereafter.” (References omitted and Underlining added)

[206] I will now return to consider the remaining other relevant matters in this case.

[207] Whilst what Mr Solin said on the bus had offended and upset other employees this was the result of Mr Solin’s failure to properly consider his surroundings before he spoke, his words were not directed at anyone.

[208] At paragraph [57] of Mt Arthur v Goodall the Full Bench accepted that to personally direct anti-Muslim comments at an employee known to be of the Islamic faith was objectively more serious than the expression of anti-Muslim opinions to fellow employees known to hold similar views even where that is done in a manner where this may be heard by other employees who may be offended. The Full Bench said this is because in the former case there is likely to be to be both the intention and effect of degrading, belittling or humiliating and individual while in the latter case such intention and effect are less likely.

[209] In the first meeting with Mr Solin on 13 October 2016 he told Ms Johnston and Mr Bowers that it was a private conversation on a dark bus early in the morning and he had not intended to offend anyone. In response Mr Bowers for Chevron said that the company has people from varied backgrounds and values a diverse workforce and spends a lot of time and effort creating a respectful workplace. He then went on to say words to the effect of, “You can never know how someone will receive what you say. Therefore it’s important to be mindful of what you say and how you say it.”

[210] At the termination meeting Mr Solin asked whether the context he had made his statement in had been considered. Mr Bowers in response replied, “It’s about what people heard.”

[211] Mr Solin’s statement was inadvertently heard by other employees. Chevron’s emphasis was on the fact that other employees had heard what was said and had been offended. The full circumstances which were known to Chevron were such that at the time it was not obvious to Mr Solin that what he was about to say would be heard by anybody other than his friends. While Mr Solin was responsible for his misjudgement Chevron did not take into account the fact his statement was not directed at anyone. This fact as the Full Bench decided in Mt Arthur v Goodall reduces the gravity of Mr Solin’s misconduct.

[212] In Mt Arthur v Goodall the Full Bench was reviewing a case of an employee whom had made multiple comments over an extended period of time over his employer’s two-way radio system. At paragraph [60] the Full Bench found he was recklessly indifferent to the fact that he could be heard by anyone tuned into that channel which was potentially a large number of persons.

[213] In comparison Mr Solin had made one statement only. He was at the back of a bus with work friends and the nearest other employees were at least four rows in front of him. Mr Solin did not realise others on the bus would hear him. His conversation was intended to be private. However other employees did hear what Mr Solin said. The potential number of others who could have heard him was not large. Obviously Mr Solin had not taken sufficient care to ensure his conversation was not heard by others. Mr Solin’s actions were careless rather than involving reckless indifference. These circumstances reduce the gravity of Mr Solin’s misconduct.

[214] The reason for dismissing Mr Solin was not limited to what he said on the bus but also the fact he was involved in a conversation that Chevron characterised as being about “…using women in a degrading way and thinking it was a joke”. 38 That conversation between Mr Solin and his friends would have lasted for approximately one minute. Mr Solin apparently was dismissed not just because of what he said but also because of what Mr Burrows said and for laughing about what they had said.

[215] This approach involved some conflation of the individual statements made by Mr Solin and Mr Burrows. The statement made by Mr Burrows was undoubtedly about men using women in a degrading way. It is debatable however whether Mr Solin’s statement should properly be characterised in the same way. Objectively considered Mr Burrows’ statement was significantly more rude and offensive than the statement by Mr Solin.

[216] Mr Burrows spoke after Mr Solin had made his statement so Mr Solin had no control over what Mr Burrows said. In addition whilst there was nothing humorous about Mr Burrows’ story some may find the story Mr Solin told as humorous. 39 If Mr Burrows had said something innocuous Chevron should have viewed Mr Solin’s conduct as less serious. For these reasons it was harsh, as Chevron did, to in part punish Mr Solin for something that Mr Burrows said.

[217] Adopting the Full Bench’s approach to incitement at [60] of their decision in Mt Arthur v Goodall, Mr Solin did not incite Mr Burrows to say what he did.

[218] To what degree Mr Solin’s statement was rude and offensive is a relevant matter. Was it mildly rude or offensive, extremely rude or offensive or otherwise?

[219] There was some debate in the hearing about the word “gin”, which Mr Solin admits he said. Whilst I accept as the parties have agreed in their statement of agreed facts that the word “gin” is derogatory, the information Chevron collected during their Investigation demonstrated this was not a universally held understanding.

[220] Mr Harkins opinion was that “gin” is a derogatory word used to refer to an Aboriginal woman. He understands it to be an extremely disrespectful term, and is up there with a lot of other racist and sexist words that people use to describe Aboriginal people and women. As an Aboriginal person it is a word he would never normally use.

[221] Mr Jackamarra’s opinion, as recorded in the notes of Ms Johnston 40, was that “gin” refers to Aboriginal women. He told Ms Johnston that he knew that Mr Solin would have heard that term commonly used to describe Aboriginal women in WA Culture. He told Ms Johnston that growing up in WA in his culture “gin” is not necessarily derogatory. He said he cannot say what it means to Mr Harkins growing up in Queensland. He said the word has a different meaning to Mr Harkins.

[222] Mr Solin’s opinion was that on the bus he had use the term “gin” in a non-derogatory way and did not see the word as derogatory at that time. 41 He told Ms Johnston that he had explained to Mr Harkins that Aboriginal people he knew use that word and he has used the word with them before. He said he understood that if you do not know the person you might take it in a derogatory way but that was not what was intended.42 Mr Solin viewed the word as descriptive of Aboriginal women unless used as a direct angry slur towards someone.43

[223] Mr Burrows’ opinion was that when in the conversation the word “gin’ was used there were no racial overtones. He said he did not like the word “gin”. 44 He told Ms Johnston that some people do not find the term derogatory.45

[224] Considered in isolation Chevron might have viewed Mr Solin’s and Mr Burrows’ opinion about the word “gin” as a self-serving defence. However Chevron was also aware from their Investigation that Mr Jackamarra’s view of the word “gin”, that of the other Aboriginal man who had heard the conversation on the bus and been offended, was different from Mr Harkins. The evidence is that Mr Solin had considerable involvement with Aboriginal people in the past which might suggest his opinion reflected this experience rather than prejudice. Chevron’s approach however was to ignore these facts, which the Investigation had revealed, and approach this matter on the basis that the word “gin” can only ever be an extremely derogatory racial slur. Ms Butler’s opinion was that “gin” was the most offensive word you could use to describe an Aboriginal woman and is used as a way of degrading aboriginal women. 46 This clearly informed the judgement as to how rude or offensive the statement was.

[225] Regard should have been had for the fact that there was a range of opinion as to how rude or offensive using the word “gin” was. Chevron’s view, which prevailed, was that any normal person in the community would know you must not use the word. 47 Chevron concluded Mr Solin’s behaviour was extremely serious and absolutely intolerable.48 On the information known at the time this assessment exaggerated the gravity of Mr Solin’s misconduct and was unreasonable.

[226] The Full Bench in Mt Arthur v Goodall at paragraph [70] found that the employer’s argument that Mr Goodall was not genuinely contrite was baseless. The Full Bench explained that what Mr Goodall had to apologise for was not his anti-Muslim opinions, which the Full Bench found he was entitled to hold however bigoted they were, but for expressing those views on a radio channel that was accessible potentially to a large number of fellow workers. The Full Bench went on to explain that the anti-Moslem opinions Mr Goodall had expressed during a meeting with his employer were expressed following an invitation to discuss the views heard on the recorded radio conversation. In response to this invitation Mr Goodall again gave voice to what the Full Bench termed his regrettable and bigoted views in a frank and forthright fashion. The Full Bench found that this was not inconsistent with his contrition for expressing such views over the employer’s two-way radio.

[227] Chevron’s policies do not constrain or regulate what people think or believe or say at large. Chevron’s policies and specifically the Discrimination Policy quite rightly are aimed at ensuring that such thoughts, beliefs or words do not adversely affect other employees in the workplace.

[228] Consistent with the Full Bench’s reasoning in Mt Arthur v Goodall, in Mr Solin’s case what he had to apologise for was not what he said on the bus but rather that he allowed what he said to be heard by others who might be offended. Further Mr Solin was entitled to maintain his view of the word “gin” and to maintain his view that the story he told in the full context was not offensive and not degrading to women. As was the case in the Full Bench matter, the fact that Mr Solin maintained this view on these matters during his interview with Chevron was not inconsistent with him being contrite about the fact that what he said was heard by others and had offended and upset them.

[229] Consideration should have been given to the fact that as soon as he became aware that he had upset Mr Harkins Mr Solin went to some lengths to attempt to apologise to him. The fact that in doing so he sought to explain why he said what he said and that Mr Harkins did not accept this and perhaps even viewed this as unacceptable in itself does not detract from the fact that Mr Solin was immediately regretful that he had caused upset to Mr Harkins and attempted to resolve this. Some credit should have been given to Mr Solin for the fact that from the outset he accepted that Mr Harkins had been upset and offended by what he had said and he regretted this had happened.

[230] I have had the opportunity to listen and watch Mr Solin give his evidence and I am satisfied that Mr Solin was genuinely apologetic for having caused upset to other employees who heard what he said. Mr Solin stated this in his written response to Chevron.

[231] Chevron adopted the view that because Mr Solin persisted in explaining why he used particular words this meant he had never been apologetic. 49 Chevron’s conclusion that Mr Solin was not contrite or apologetic was unreasonable.

[232] Mr Solin had been employed for just over three years at the time of his dismissal. Other than for his conduct that led to his dismissal Mr Solin had an unblemished employment record with Chevron. Mr Solin’s conduct for which he was dismissed was a single failure to comply with Chevron’s Discrimination Policy. Considering what the misconduct was and all the circumstances dismissal was a disproportionate disciplinary penalty.

[233] These other remaining relevant matters which I have considered above lead me to conclude that Mr Solin’s dismissal was both harsh and unreasonable.

Conclusion

[234] Having considered all of the matters specified in section 387 of the Act I am satisfied that the dismissal of Mr Solin was harsh and unreasonable. I find that Mr Solin has been unfairly dismissed by Chevron.

Remedy

Reinstatement?

[235] The Applicant submits that if there was a valid reason for disciplinary action against Mr Solin dismissal was disproportionate to his misconduct. Consequently the Applicant seeks an order for reinstatement under section 390 of the Act.

[236] Mr Solin’s representative submits that there is no basis to find that Mr Solin’s conduct has resulted in a loss of trust and confidence which would make reinstatement inappropriate and impracticable.

[237] The Applicant also seeks an order for continuity of service.

[238] The Respondent submits that the Commission should not order reinstatement because of the serious nature of Mr Solin’s misconduct, his failure to appreciate his conduct constituted harassment within the meaning of the Discrimination Policy, his attempts to downplay the seriousness of his misconduct and on at least one occasion to blame Mr Harkins for the position he was in and his complete disregard for Chevron’s values and its approach to workplace conduct as set out in its policies.

[239] Ms Butler’s evidence was that Mr Solin’s behaviour does not demonstrate any acceptance of Chevron’s values and the management has lost all confidence in his ability to align with their values. She believes that having the Applicant back in the workplace would put Chevron’s current workforce, particularly women and Aboriginal employees, at risk of further abuse.

[240] Mr Solin has apologised a number of times for his actions and the offence and upset he has caused to others. He did so during the hearing and I accepted his evidence as being honestly given. He also apologised in writing to Chevron wherein he explained he understands how highly offensive his words would have been to others. He has told his employer he is embarrassed and ashamed that his language had this effect on other employees in the workplace and will make sure this behaviour is not repeated.

[241] It is difficult to understand how it can be said that Mr Solin’s momentary lack of attention to his surroundings as he sat amongst his friends at the back of the bus at 5.00 a.m. in the morning demonstrates he does not in any way accept Chevron’s values.

[242] The evidence is that what occurred is the only instance of speaking inappropriately in the workplace in the three years of his employment with Chevron.

[243] Mr Solin referred Chevron to three Aboriginal men who could be character referees for him. This does not suggest Aboriginal employees are at risk of further abuse by Mr Solin if he was reinstated.

[244] There is no basis to conclude that Mr Solin has not learned his lesson and is likely to repeat this type of behaviour.

[245] There is no reason to believe that Chevron’s trust and confidence in Mr Solin cannot be restored. I am satisfied that the employment relationship for the future is workable. 50

[246] I consider then that the appropriate remedy is an order under section 391 of the Act reinstating Mr Solin to the position in which he was employed immediately before the dismissal, which was as a Production Technician-Pay Salary Grade 18 on the Gorgon Project on BWI.

[247] An ancillary order under section 391(2) of the Act maintaining Mr Solin’s continuity of employment will also be issued.

Compensation for lost remuneration?

[248] Mr Solin’s representative submitted that the Commission may consider declining to make an order restoring the lost remuneration since dismissal as a reasonable sanction for the Applicant’s misconduct. Mr Solin’s representative submits that that would strike a balance between Chevron’s obligations to provide a workplace free from unacceptable conduct and the company’s right to impose a disciplinary penalty for such behaviour.

[249] Mr Solin’s representative submits that this would involve the Applicant suffering a significant financial penalty.

[250] Mr Solin’s failing in this matter was not saying what he said but rather failing to ensure that other employees did not overhear what he said. But this does not mean that Mr Solin’s failure is a minor one. By allowing other employees to overhear his conversation Mr Solin caused upset and offence to two other employees which should have never happened.

[251] Chevron had considered 51 whether some lesser form of disciplinary action should be applied. Removal of Mr Solin’s incentive payment was considered however this was not considered appropriate because it was an at risk payment that was dependent upon a range of factors including the overall performance of the business so receipt of this payment was not guaranteed. Chevron concluded that there was no other option but to terminate Mr Solin.

[252] Employers often have to decide the appropriate disciplinary consequence for a single instance of misconduct. The seriousness of that misconduct will vary. Misconduct can range from being relatively minor to extremely serious. The difficulty of identifying an appropriate disciplinary consequence is compounded by the fact that other circumstances which should be properly take into account will also be highly variable. Often a written warning is not viewed as a sufficiently serious consequence but dismissal would be too harsh for the particular misconduct in particular circumstances.

[253] In dealing with these variable situations employers often have a limited range of disciplinary options. This increases the likelihood that disciplinary action is not in proportion with the misconduct and the circumstances and is more likely to be either inappropriately lenient or inappropriately harsh. These situations are problematic for both employers and employees.

[254] It is rare that an employer has a legal right to impose a period of unpaid suspension or some other financial penalty on an employee which might appropriately be adjusted to respond to the seriousness of the misconduct and the particular circumstances. The development of such options, or other novel forms of disciplinary action, are matters some parties do consider when negotiating enterprise agreements.

[255] Mr Solin has caused offence and upset to other employees. Mr Solin had a responsibility to Chevron to comply with its policies and as part of that to ensure anything rude or offensive he may say could not be overheard by others. He failed to do so and so must bear some responsibility for the financial consequences he has suffered as a result of his dismissal. Consequently I have decided I will not be making an order for lost remuneration. Given Mr Solin’s total remuneration package was $193,546 per annum gross, the remuneration lost since October 2016, which is the penalty for his misconduct, by any standard is a considerable penalty.

[256] An Order [PR592825] consistent with this decision will be now issued.

COMMISSIONER

Appearances:

T. Kucera of Turner Freeman Lawyers for the Applicant.

J. Ley of Counsel for the Respondent.

Hearing details:

2017.

Perth:

February 23.

Final written submissions:

Applicant, 16 March 2017.

Respondent, 9 and 22 March 2017.

1 Statement of Agreement Facts, email chain at Attachment H.

2 Ibid., at PN139.

3 Exhibit A1 at paragraph 35.

4 Transcript at PN134.

5 Ibid., at PN515.

6 Ibid., at PN164.

7 Ibid., at PN164, PN192, PN251 and PN453.

8 Exhibit R1 at paragraph 99.

9 Transcript at PN214 to PN218.

10 Ibid., at PN251.

11 Ibid., at PN354 to PN360.

12 Ibid., at PN1318.

13 Ibid., at PN1321 to PN1324.

14 Exhibit R3 at paragraphs 32 and 33.

15 Exhibit R1, Attachment KEJ2.

16 Exhibit A2.

17 Transcript at PN1074 and PN1075.

18 Ibid., at PN1085 to PN1092.

19 Ibid., at PN1189 to PN1191.

20 Exhibit R2 at paragraph 46.

21 Transcript at PN1125.

22 Ibid., at PN1128.

23 Ibid., at PN1129 to PN1131.

24 Ibid., at PN1178.

25 Ibid., at PN1180 to PN1181.

26 Ibid., at PN1182.

27 Exhibit R1, Attachment KEJ2.

28 See Gary McDermott v BHP Coal Pty Ltd[2016] FWC 6935, Jodie Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2016] FWC 4129 and Mt Arthur Coal T/A Mt Arthur Coal v Jodie Goodall [2016] FWCFB 5492.

29 Transcript at PN1106 and PN1125.

30 Ibid., at PN1106.

31 Ibid., at PN641 to PN642.

32 Ibid., at PN1125 to PN1128, PN1237 to PN1240, PN1222 to PN1224 and Exhibit A2.

33 Statement of Agreed Facts, Attachment 9.

34 Ibid., Attachment 11 and Transcript at PN1241 and PN1242.

35 [2016] FWCFB 5492 at [63].

36 See [83].

37 [2016] FWCFB 5492.

38 Statement of Agreed Facts, Attachment 11 and Transcript at PN1241 and PN1242.

39 Exhibit R1 at paragraphs 67 and 69.

40 Exhibit R1, Attachment KEJ2.

41 Ibid., at paragraph 46.

42 Ibid., at Attachment KEJ4.

43 Statement of Agreed Facts, Attachment 10.

44 Exhibit R1 at paragraphs 58 and 62 and Attachment KEJ6.

45 Ibid., at Attachment KEJ8 at page 3.

46 Exhibit R2 at paragraph 19.

47 Transcript at PN1256.

48 Ibid., at PN1261.

49 Exhibit R2 at paragraph 26 and Transcript at PN1181.

50 [2016] FWCFB 5492 at [76].

51 Exhibit R2 at paragraph 35.

Printed by authority of the Commonwealth Government Printer

Robert Solin v Chevron Australia Pty Ltd