Susan Francis v Patrick Stevedores Holdings Pty Ltd - [2014] FWC 7775

[2014] FWC 7775

FAIR WORK COMMISSION

DECISION

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

Susan Francis
v
Patrick Stevedores Holdings Pty Ltd
(U2014/279)

DEPUTY PRESIDENT SAMS

SYDNEY, 3 NOVEMBER 2014

Termination of employment - dismissal for serious misconduct - allegations of physical assault - onus of proof - allegation of inappropriate use of two-way radio - alleged collaboration of allegations by other employees - wharfies’ ‘code of silence’ - employees’ duty to cooperate - respondent’s investigation seriously flawed - no corroboration of allegations - inconsistencies of versions of events - flawed findings and recommendation of dismissal not available on the evidence - inexperience of investigator - failures of senior management to properly investigate allegations and counter-allegations - onus of proof not discharged - substantive and procedural unfairness - applicant’s dismissal ‘harsh, unreasonable and unjust’ - no valid reason for applicant’s dismissal - remedy of reinstatement not inappropriate - reinstatement ordered - orders for payment of lost remuneration and continuity of service Application for relief from unfair dismissal.

INTRODUCTION

[1] Ms Susan Francis (the ‘applicant’) was employed by Patrick Stevedores Holdings Pty Ltd (‘Patrick’ or the ‘respondent’) from 10 September 2012 until 13 January 2014, when she was dismissed for misconduct. At the time of her dismissal, she was a Senior Tally Clerk. In this role, she was responsible for ensuring the movement of correct cargo on and off a ship and into its correct placement. The applicant is 42 years old and is the sole carer for her four year old daughter. The applicant had previously worked for Newcastle Stevedores between 2002 and 2009, but stopped working to care for her child, before taking up her job with the respondent.

[2] This decision arises from an application, filed by the applicant on 3 February 2014, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for a remedy from unfair dismissal. The matter was the subject of an unsuccessful telephone conciliation on 17 March 2014 and was allocated to me for arbitration, beginning 27 May 2014 in Newcastle. While the parties engaged in some brief settlement discussions on that day, these were ultimately unsuccessful and the matter progressed to arbitration. At the commencement of the proceeding, I granted permission, pursuant to s 596 of the Act, for the applicant to be represented by Mr A Howell of Counsel, instructed by Mr A Jacka for the Maritime Union of Australia (‘MUA’ or the ‘Union’) and for the respondent to be represented Mr S Burke, Solicitor, instructed alternately by Ms T Green and Ms C Ross of the respondent.

[3] When the applicant was dismissed on 13 January 2014, she was given a letter from Mr Warwick Sommer, General Manager - Stevedoring, expressed in the following terms:

‘I refer to [your employment with the respondent] and the allegations regarding your behaviour and actions of Wednesday 27 November 2013.

I wish to reiterate that Patrick views inappropriate behaviour and contravention of our Bullying and Harassment policy as serious.

A show cause meeting outlining the allegations made against you was held with yourself on Thursday 9 January, 2014. At this time you were given an opportunity to respond to these and provide any information you believe was relevant for the Company to consider. The meeting was also attended by Denis Outram as your representative, and Andrew Wickham and Tamara Green.

Consideration has been given to the responses which you have provided throughout this process. It has been found that your conduct is unsatisfactory.

As communicated to you previously, in light of the seriousness of this misconduct and having regard to your response to the matter, the totality of your conduct is such that we took the decision to terminate your employment effective 14 January 2014.

Please advise us if you require a statement of service certifying your employment at Patrick.’

[4] The allegations referred to above were set out in a letter sent to the applicant on 16 December 2013 as follows:

1. On 27 November, you were working in the yard as a tally clerk;

2. During the shift, at approximately 3 am, you were heard by several people communicating over the radios in a manner which has been described as abusive and inappropriate;

3. You were asked by a co-worker to ‘shut up’. You challenged the forklift operator around their comment and that co-worker again told you to ‘shut up’. The comment had come from Mr Nichol;

4. The shift carried on until smoko without any further incident;

5. At approximately 5 am, you entered the smoko room and walked straight up to Mr Nichol;

6. At or around this time, you began shouting at Mr Nichol. You were heard saying words to the effect, ‘Don’t you ever talk to me like that again’;

7. At or around this time an alleged physical assault occurred in which you grabbed Mr Nichol around the throat.

[5] The reference to Employee Responsibilities under the Asciano Prevention of Bullying and Bullying and Harassment Policy is set out under the heading of ‘9. Employee Responsibilities’ as follows:

‘All employees of Asciano are responsible for ensuring their own behaviour contributes to an environment which is free from discrimination and harassment and that abides by the Asciano values and Code of Conduct. It is the responsibility of all Asciano employees to:

Set a positive example by treating others with respect at all times;

Be aware of Asciano policy and comply with it;

Show care and common sense - don’t make comments to others which may offend;

Don’t accept behaviour that may be offensive to you or others;

Take positive action to ensure inappropriate behaviour is challenged and reported; and

Be supportive of colleagues who may be subject to such behaviour.

Asciano encourages employees who experience harassment or discrimination to report it straight away. This will remain confidential. Where necessary, a formal investigation will be undertaken and disciplinary action may occur.’

[6] At this point, I do not apprehend there to be any jurisdictional objections to the matter proceeding to arbitration. Specifically, I am satisfied that the applicant was a person protected from unfair dismissal (ss 382, 396(b)) in that she completed the minimum employment period of 6 months (ss 382(a), 383(a)) and that she was covered by the Patrick Bulk and General Newcastle Enterprise Agreement 2012 [AE899038] (s 382(b)(ii)). Additionally, the application was made within 21 days of the dismissal (ss 396(a), 394(2)), the respondent is not a Small Business as defined (ss 396(c), 388) and the applicant’s dismissal was not a case of genuine redundancy (s 396(d)). For the sake of completeness, there is no doubt that the applicant was a national system employee and that the respondent is a national system employer, as defined (ss 13, 14, 380).

THE EVIDENCE

[7] The following persons gave written and/or oral evidence in the proceeding before the Commission:

For the applicant:

The applicant;

Mr Bradley Mackerras, Crane Driver, Patrick;

Mr David Gorlicki, Forklift Driver, Patrick;

Mr Denis Outram, Honorary Deputy Branch Secretary of the Union’s Newcastle Branch;

Mr David Cox, Casual Operator, Patrick; and

Mr Bradley Gough, Full Time Operator, Patrick.

For the respondent

Ms Tamara Green, Regional HR Manager, Ports and Stevedoring, Patrick;

Mr Scott Young, Stevedore, Patrick;

Mr Justin Ferguson, Stevedore, Patrick;

Mr Bruce McIntyre, Stevedore, Patrick;

Mr Andrew Wickham, Newcastle Site Manager, Patrick;

Mr Paul Nichol, Stevedore, Patrick; and

Mr Warwick Sommer, General Manager, Stevedoring, PSL Services Pty Limited.

The applicant

[8] In her written statement, the applicant deposed that she worked between 8:00pm and 8:00am on 26-27 November 2013. In the earlier part of that shift, after waiting in the shed for Mr Brad Gorlicki, a Forklift Driver to assist with moving some steel plate, she had said over the two-way radio: ‘Are you going to bring that forklift into the shed or what Gorlicki?’. There was a response of ‘Why don’t you shut the fuck up Susie?’ The applicant did not immediately respond to this, but when Mr Gorlicki came into the shed, she told him not to speak to her like that again. Mr Gorlicki told her that it was ‘Nicko’ (Mr Paul Nichol) who had spoken to her over the two-way radio. The applicant explained that she had only spoken on the two-way radio to ask Mr Nichol, who had been working in the hull of a ship, if there were any delays. He had not replied and Mr Jake Roach had notified her of what was happening on the shift.

[9] The applicant said that prior to this incident and the subsequent allegations made by Mr Nichol, she considered him to be a friend. On one occasion, she had paid for Mr Nichol and his girlfriend to attend a boat cruise and for their drinks while they were there. They talked about general things at work. On another occasion, he had hit her on the head with a radio while she had a hard hat on. She had thought that this was only in fun, and responded by jabbing him in the back. He had once referred to her as a ‘ranga’ in front of other workers and asked her if ‘the carpet matched the curtains’ on a number of occasions. After the first time this happened, two of her colleagues had called her to ask if the comment had upset her. While she thought it was ‘out of line’, she had not complained about it.

[10] Returning to the night of 26 November 2013, the applicant said that the dinner break took place at midnight. She entered the meal room and spoke to a number of people while she prepared her refrigerated dinner. When she walked back from heating her dinner in the microwave, she said to Mr Nichol, ‘And by the way, don’t you ever talk to me like that again.’ Mr Nichol was sitting at a table with his back against the window and responded sarcastically, saying ‘And what are you going to do about it?’ The applicant jokingly said ‘I’ll smash you’. Mr Nichol repeatedly said, ‘Come on, come on then’, though not in an aggressive manner.

[11] The applicant had initially thought she and Mr Nichol were ‘just mucking around’ and moved approximately five steps towards Mr Nichol, with one hand pointed towards him and she may have touched his shirt. Mr Nichol responded by punching her ‘firmly’ in the chin/throat, but not hard enough to knock her over. She was shocked and upset. When she stepped back, Mr Nichol said, aggressively and in a raised voice, ‘You strangled me and that’s abuse’ a couple of times, amongst some other things. She sat down and ate some of her meal and then went back to work. She did not have a chance to speak to Mr Nichol until the second break, which took place at approximately 5:00am. Mr Nichol spoke to her like nothing had happened.

[12] The applicant explained that after finishing a 12 hour shift on the morning of 27 November 2013, she was approached by Mr Wickham, who informed her she was to be stood down immediately and would be required to attend a meeting at 7:00pm due to allegations made by Mr Nichol. She was shocked. She had asked her partner, Mr Gough to cancel the meeting, as she had not been able to sleep, but had then changed her mind and attended the meeting with Mr Wickham and Mr Michael Ryan (Continuous Improvement Manager). Mr Gough attended with her as her support person. She was told that Mr Nichol had alleged that she had ‘ran into the lunch room screaming at him and strangled him.’ She described the incidents as she recalled them, but noted that she substituted the word ‘fuck’ with ‘Mmm’ (in recalling the two-way radio incident) as she was embarrassed to swear in front of management. She was told that Mr Nichol had been stood down, but she now did not believe this to have been the case. She was told to sign a document which Mr Wickham had written on. She had not read it and had not realised that this was her statement. She had never been given a copy.

[13] The applicant was told a couple of hours after this meeting that she could return to work, as none of the employees on shift had corroborated Mr Nichol’s allegations. However, at 9:00am on 28 November 2013, Mr Wickham called her to reverse this decision, as someone had confirmed Mr Nichol’s story. She attended a further meeting with Mr Wickham, Ms Tamara Green (Regional HR Manager) and Mr Kevin Roach (Stevedoring Operational Manager, Newcastle). She attended with Mr Outram and Ms Michelle Myers of the Union and Mr Gough. She again outlined her version of the incident, describing more specifically who had been in the lunch room and providing a rough diagram of the room at that time. Mr Outram had asked Patrick to pay her while she was stood down. Mr Wickham contacted her on or around 15 December 2013 to tell her that she would be receiving a letter from Patrick. The letter of 16 December 2013 directed her to attend a meeting with Mr Wickham and Ms Green on 19 December 2013. She was allowed to bring a support person. The letter described the allegations as follows:

‘1. On 27 November, you were working in the yard as a tally clerk;

2. During the shift, at approximately 3 am, you were heard by several people communicating over the radios in a manner which has been described as abusive and inappropriate;

3. You were asked by a co-worker to ‘shut up’. You challenged the forklift operator around their comment and that co-worker again told you to ‘shut up’. The comment had come from Mr Nichol;

4. The shift carried on until smoko without any further incident;

5. At approximately 5 am, you entered the smoko room and walked straight up to Mr Nichol;

6. At or around this time, you began shouting at Mr Nichol. You were heard saying words to the effect, ‘Don’t you ever talk to me like that again’;

7. At or around this time an alleged physical assault occurred in which you grabbed Mr Nichol around the throat.

The allegations above are very serious. Further, your alleged conduct of physical assault, verbal abuse and behaving aggressively towards another Patrick employee, if substantiated, would be unacceptable and constitute serious misconduct.

You opportunity to respond to the allegations

You will have an opportunity to respond the allegation in the meeting on Thursday 19 December 2013. In addition to attending the meeting, you may also respond to the allegations in writing.

You should be aware that, if the investigation finds that the allegations are true, you may be subject to disciplinary action, which may include termination of your employment.’

[14] The applicant took up the opportunity to respond to the allegations in writing on 19 December 2013. In this document, she specifically denied using abusive or inappropriate language over the two-way radio and emphasised that someone had responded by saying ‘Shut the fuck up Suzie’. She also denied walking directly up to Mr Nichol when she entered the meal room and described the incident in similar terms to that above (see paras [10]-[11]). She defended her use of the phrase, ‘Don’t you ever talk to me like that again’ as reasonable in the circumstances and denied she had been shouting. She specifically denied grabbing Mr Nichol around the throat; rather she had been assaulted by Mr Nichol and she questioned why he was still at work. She complained about the inconsistency and confusing aspects of her treatment by Patrick and the effects this had had on her.

[15] The applicant attended the meeting with Mr Wickham and Ms Green on 19 December 2013 with Mr Outram of the Union acting as her support person. She handed her written response to the Patrick representatives. They asked if she wanted them to read the document before making their decision. When she said yes, they asked her to step outside. Approximately fifteen minutes later, she was asked to come back in and told that Mr Wickham and Ms Green would need to show her written response to higher levels of management.

[16] The applicant described another meeting she attended with Mr Wickham and Ms Green and Mr Outram acting as her support person, but she could not remember the date. This was in the Newcastle Stevedores offices, as the Patrick offices were being painted. She was upset about this as she had previously worked for Newcastle Stevedores between 2002 and 2009 and did not want anyone there knowing what was happening. She had expressed her distress that Patrick was not making a decision. She felt that she had been judged guilty from the start. She was told that a decision would likely be made at a further meeting in the new year. The applicant attended a further meeting with the same parties on 13 January 2014. Mr Wickham read out a letter setting out that she was dismissed (see para [3]).

[17] In further evidence, the applicant described an aggressive altercation she had witnessed between Mr Nichol and Mr O’Connell while Mr O’Connell was on a crane and Mr Nichol was working in the ship. Mr Nichol had yelled words to the effect of ‘Come down here, get out of the cab, come down here, I’ll kill you’ over the two-way radio. Mr O’Connell responded in kind. She had told the Team Leader, Mr Cassidy of this incident, but after he listened to it, he had been unconcerned and no action was taken.

[18] In oral evidence, the applicant agreed that she had been spoken to about the incident on 27 or 28 November, 4 and 19 December 2013 and 9 and 19 January 2014. However, she had not been provided with notes made by the respondent during these conversations.

[19] The applicant clarified that she had been working in the shed when she spoke to Mr Gorlicki over the two-way radio about the forklift. She had known he was on the forklift because she had seen his truck around the corner of the shed. There was no load coming out of the ship at the time as the workers were engaged in changing the crane lifting gear. Somebody had responded to her over the radio by saying ‘Shut the fuck up, Suzie’ and she had thought it was Mr Gorlicki. She had stood up on the step of his forklift and spoken to Mr Gorlicki sternly when he came back into the shed as she was annoyed to think that he would talk to her in that way. However, she had not been yelling. Mr O’Connell and Mr Ferguson had been working with her in the shed at the time. Mr Ferguson was about five or six metres away on his operational forklift and would not have been able to hear them.

[20] The applicant was shown the original written complaint made by Mr Nichol. It was in the following terms:

‘Approximately 3am in morning à 27-11-13. Susan was shouting in a very agressive [sic] manner to forklift driver over the two-way radio. It went on for a few minutes. I said over the radio shut up Suzy (She was shouting insults).

At smoko 5am was sitting in Lunch Room having a snack.

Susan came storming in shouting at top of her voice. If you tell me to shut up again I will punch you in the head.

Susan stormed across the room and grabbed me by the throat still yelling very aggressive [sic].

I told her 3 times never grab me again.

I could not sleep all day because was very upset by her agressive [sic] behaviour.’

The applicant claimed that she had never been shown this document before, or had it read to her or summarised for her. She denied shouting or that she had threatened to punch anyone in the head.

[21] The applicant was shown the witness statements of Mr Nichol and Mr Ferguson. She denied she had shouted insults over the two-way radio and specifically that she had called Mr Gorlicki an ‘imbecile’. She had simply asked him when he was going to get the forklift back into the shed. In any event, the incident in question had occurred at 11:00pm, not 3:00am. The applicant denied Mr Nichol would have needed radio silence when he was in the hatch of the ship, as this was not really possible where there were ten people using the same channel. People could not speak over each other and only one person could be heard at a time. She had not responded when she had been told to ‘Shut the fuck up’.

[22] The applicant believed that Mr Gough, Mr O’Connell, Mr McIntyre, Mr J Roach, and possibly Mr Ferguson were present in the meal room during the confrontation between herself and Mr Nichol. She described the room in which the incident took place as being rectangular and about six metres long. The applicant was also shown a ‘mud map’ of the room drawn by her, which demonstrated that Mr Nichol was the furthest away from anybody from the door. Mr Nichol was sitting at his usual table on the aisle.

[23] The applicant explained she had walked in and sat next to Mr Gough, who was eating an Indian takeaway and she asked him where hers was. He replied that it was in the fridge. She had walked over to the fridge, taken out the food, and put it in the microwave. She grabbed plastic cutlery and talked to Mr Cox. She turned around and addressed Mr Nichol in words to the effect of, ‘And by the way, don’t you ever talk to me like that again.’ She was about two and a half metres away. He had replied ‘And what are you going to do about it’. She had replied, ‘I will smash you’, but not in an aggressive fashion. Even so, she regretted having made this comment. Mr Nichol had replied ‘Come on, come on then’, but this was not said in an aggressive fashion either. She had thought they were just ‘fooling around’. She walked up to him, with the cutlery and takeaway container lid still in her hand and pointed her finger at him. She may have ‘brushed’ his shoulder or collar with one hand, but not two. She had not ‘cuddled’ him and they were about arms-length from each other. He had punched her in the throat and then said ‘Don’t you touch me, don’t you put your hands on my throat’ and ‘I will put charges on you.’ She could not recall replying to Mr Nichol. She then sat down, but did not feel like eating at this point.

[24] The applicant could not really recall what happened next, though there was a separate discussion taking place about the possibility of extending twelve hour shifts under the enterprise agreement. Mr Nichol had acted like nothing had happened at a subsequent break at 5:00am. She was rung at home at 9:00am after this shift and told that she and Mr Nichol would be stood down.

[25] The applicant denied that Mr Wickham had read any statement out to her at their first meeting on 28 November 2013. She had not seen the notes he had made at that meeting until this proceeding. They were as follows:

‘Asked if Forklift driver would be available soon. Then over the radio I head a person say “Shut Up Susie”. I challenged forklift driver why he told me to shut up & he said “Get your facts straight - it was Niko” (Meaning Paul Nichol.) Continued working.

In the lunchroom we sat down & I turned around and said “dont you ever talk to me that again [sic] + will smash you Paul said “go on then”.

I walked over to him and touched under the chin. At this point Paul punched me in the neck. I was in a little bit of a shock as I do not expect it from Niko.

There is a history of harassment from Niko.

People who witnessed it: Bradley Mackerras

David Gorlicki (FL Driver)

Jake Roach

Justin Ferguson

Steve O’Connell’

The applicant clarified that when relaying what had been said to her over the two-way radio, she had said ‘Shut the mmm up Suzie’ and thought that it would be understood that she meant ‘Shut the fuck up Suzie’. Mr Gough had been there as her support person in that meeting and may have clarified this point as well.

[26] The applicant had sought to ‘touch’ Ms Green at the meeting on 9 January 2014 to demonstrate how she had ‘touched’ Mr Nichol. She did not think Ms Green was ‘shocked’ at this and she had not said anything. She denied that she had said that Mr Roach should not retain his position, though she had said that people were unhappy at the approach that he and Mr Grech were taking in allocating shifts. She further denied that she had said that she would not work under Mr Roach’s direction. She also agreed that she had made allegations about the local delegates (Mr Carter and Mr Grech) as playing a part in Mr Nichol’s complaint. Mr Carter did not like her as she had taken offence to his use of the word ‘scab’ and an allegation that non-Union workers had been bashed in front of their families.

[27] Throughout her time on the Newcastle wharves since 2002, the applicant had never known the Union to take a member to the boss to make a complaint about another member. Usually, a complaint would be made to the delegate and then the delegate would ring the Union’s office. She did not know what would happen after that, but the issue would be sorted out internally.

[28] In cross examination, the applicant agreed that she was aware of the Asciano Code of Conduct and that she had attended a number of workshops setting out the requirements under the Code. This set out her obligations to take care of herself and others and to demonstrate respect to customers, colleagues and the public. She understood that if she failed to comply with these standards, she could be dismissed and she was required to raise any breaches of conduct or policy with a Manager or Supervisor. She understood direct violence or threatening body language could be construed as bullying under the Code. She had not initially felt it was necessary to report Mr Nichol, saying ‘You work on the wharf, you get a bit of a hard shell.’

[29] The applicant denied referring to Mr Gorlicki as an ‘imbecile’ or in a disrespectful manner over the two-way radio. She agreed that she had been frustrated that she was getting all night shifts (the ‘Dog Watch’) and she thought that Mr Grech was favouring his friends by allocating them the better shifts. While she could not recall whether the person on the two-way radio said ‘Shut the fuck, Suzie’ or ‘Why don’t you shut the fuck up Suzie’, she insisted that the word ‘fuck’ had been used. She accepted that her evidence that she had only used the two-way radio to communicate with Mr Nichol in the hold of the ship, was inconsistent with her evidence of her communications with Mr Gorlicki.

[30] The applicant repeated her evidence that the physical confrontation between herself and Mr Nichol took place during the first break at approximately 11:00pm, rather than on the second one at 5:00am. She had entered the meal room, spoke to Mr Gough and Mr Cox, both of whom were sitting down. She denied entering the room and telling Mr Nichol, ‘If you tell me to shut up again, I’ll punch you in the head.’ She did not think her conduct in walking five steps towards Mr Nichol and saying, ‘I’ll smash you’ was aggressive or threatening as they were friends and it was not said in an aggressive manner - she thought that it was just banter.

[31] The applicant denied that Mr Wickham had read her the complaint of Mr Nichol (see para [20]). He had simply asked her what had happened as Mr Nichol had reported that she had ‘strangled’ him. Mr Gough had referred to the use of the word ‘fuck’, but this was not reflected in Mr Wickham’s notes. It was not a true record of what she said. The applicant clarified that the reason her hand touched Mr Nichol’s shirt was because he punched her in the throat, though she accepted that her own written response of 18 December 2013 referred to her being punched ‘straight into my chin’. She conceded her evidence on this point was inconsistent. Her finger would have touched his collar on his shoulder and not the chin, as referred to in Mr Wickham’s notes.

[32] The applicant accepted that Mr Nichol had said ‘You strangled me and that’s abuse’ in a loud, aggressive tone. It was possible that he had said ‘Never grab me again’or ‘Don’t touch me again’. She denied that she had her hands around his throat. He had also said something like, ‘I could charge you.’ She thought that Mr Nichol was trying to set her up. She acknowledged that she had left some of these statements out in her original written response to Patrick.

[33] The applicant conceded that she had not reported the incident to Management or a Team Leader, because ‘that’s not how Union members go about things.’ She agreed she was in a relationship with Mr Gough, but she had not reported this incident to him either. She had not reported the occasion on which Mr Nichol had struck her on her helmet with a radio as he was just ‘clowning around’ and she did not think he was bullying her.

[34] The applicant agreed that she had signed Mr Wickham’s notes of her interview on 28 November 2013 (see para [25]) and that Mr Gough had witnessed her signature, although they had been walking out the door when Mr Wickham had handed it to them to sign. She had not read it. She accepted that there had been no duress applied to her or Mr Gough to sign this document. By this point she had skipped two days’ sleep and was stressed. She could not recall if she had told Mr Wickham this. She did not realise that Mr Wickham’s notes were meant to be her statement. The written response she had provided to Patrick on 19 December 2013 better reflected the truth of the incident.

[35] The applicant was shown a document which was said to identify her starting a shift on 27 November 2013 at 11:00pm. The applicant could not recall working between the shift on which the incident took place and the meeting with Mr Wickham and specifically could not remember working a shift of 11:00pm-7:00am on 27-28 November 2013. She agreed that Mr Wickham’s notes set out that their meeting had occurred on 28 November 2013.

[36] In response to a question from me, the applicant stated that she had not been told who had come forward to confirm Mr Nichol’s version of events on or around 28 November 2013. She now knew that person to be Mr McIntyre.

[37] In re-examination, the applicant clarified that the training in relation to bullying had emphasised that if an employee had felt bullied, they should report it.

[38] The applicant agreed Mr Wickham had never asked her to adopt his notes as a true and correct account of the meeting.

[39] The applicant said that she had spoken to Mr O’Connell and Mr Gough after the incident with Mr Nichol. Mr O’Connell had noted that Mr Nichol was ‘not himself’. She had spoken to Mr Nichol during the second break and he had said something about sleeping in the bush the night before.

Mr Bradley Mackerras

[40] Mr Mackerras has worked at Patrick’s operations in Newcastle since they began and has been a member of the Union since 1992. He was working as a Crane Driver on the night of 27 November 2013. He is usually rostered as a Team Leader or in a crane. In these roles, he hears all communications over the two-way radio.

[41] Mr Mackerras claimed that he had not heard the applicant engage in any abusive or inappropriate communications on the night of 26-27 November 2013. He remembered Mr Nichol saying, ‘Shut the fuck up Susie and get on with your job’, although he did not think much of this at the time as he thought that they were friends and these sorts of comments usually went both ways, without either person taking offence.

[42] It was Mr Mackerras’ evidence that he was the closest person to Mr Nichol in the meal room during the second break at 5:00am. He did not see her enter the room and shout at Mr Nichol or grab his throat, although he was not watching them as he was reading the enterprise agreement. He acknowledged that he was tired after working four twelve hour shifts. He recalled Mr Gough raising his voice and saying, ‘I paid good money for that.’

[43] Mr Mackerras offered his opinion that the applicant usually got on well with people and did not behave aggressively, abusively or inappropriately. He described her as ‘one of the best Tally Clerks we had’. He praised her work performance and he had put this to Patrick when it was proposed to dismiss her. He would have no difficulties in working with her again.

[44] In oral evidence, Mr Mackerras explained he was the Shift Delegate for the Union on the night of 26-27 November 2013, meaning that he had been elected for that shift at the preceding Toolbox Meeting. While driving the crane, he would use the two-way radio to communicate with the ‘Grade 5 down below’ and other persons on the wharf.

[45] Mr Mackerras was shown Mr Nichol’s original complaint (see para [20]. He could not recall the applicant having said anything derogatory or ‘shouting insults’ over the two-way radio that night or anything to the forklift drivers at all. When asked what he would have done if someone had been ‘shouting insults’ over the two-way radio, Mr Mackerras was unsure and explained that ‘we have a laugh sometimes on the radio’ but generally people were not aggressive over the two-way radio as they were mindful that the Supervisor has a radio in their office. However, generally there were no Supervisors on shift during the ‘Dog Watch’ shifts. As Shift Delegate and a Grade 6 employee, he would try to talk to people to sort out any issues which arose on the shift. Some things said in the heat of the moment were best left alone.

[46] Mr Mackerras acknowledged that he had not mentioned Mr Nichol having said ‘Shut the fuck up, Suzie’ over the two-way radio when he had met with Patrick representatives on 28 November and 9 December 2013. He believed he had been on the deck of the ship at the time and the crane would have been in operation. as he had been very tired on the night in question, he had not recalled until later when he had been preparing his statement with lawyers. In any event, ‘I didn’t see or hear anything’ would be the ‘typical wharfie statement’ as they were disinclined to ‘dob each other in.’

[47] Mr Mackerras’ evidence was that he was less than one metre away from Mr Nichol in the meal room. He had been sitting behind the table with his back to the window and had been looking at the enterprise agreement to see how many 12 hour shifts they could do on extensions. Some employees (Mr Nichol and Mr Gough) had brought to his attention that they were on their third 12 hour shift and they could not do more than three over midnight. Mr Mackerras stated that he had not heard the applicant ‘storm into’ the meal room or threaten to punch Mr Nichol in the head. It was a small room and he would have heard it, as he was sitting so close by. He specifically could not recall the applicant grabbing Mr Nichol by the throat and raising her hand as if to strike him.

[48] Mr Mackerras said he was aware of a complaint the applicant had made about how Mr Carter had come to be elected as Union delegate. This issue was raised before 27 November 2013. Mr Mackerras said he had been a Union member since 1992. Typically, where there was a dispute between Union members, one would cite another to appear before a Union representative and a decision would be made as to who ‘was in the wrong’. This could result in a fine or reprimand through the Union. At that time, he was unaware of any delegate making a complaint about another member to management.

[49] Mr Mackerras agreed he had signed a ‘petition’ circulated by Mr Gough in the following terms:

‘I / We have worked with Susan Francis at Patrick Stevedores up until her dismissal, during that time I / We have found Susan to be pleasant, honest and a genuine person that is always willing to help others.

I / We know Susan to be a hard worker and good at any of the duties of work she was given.

I / we would also like to state that I /We would not have any problems working with Susan at Patrick Stevedores again if she was given the opportunity.’

[50] In later evidence, Mr Mackerras agreed that he had been aware that Mr Gough was in a relationship with the applicant when Mr Gough brought the petition to him to sign.

[51] In cross examination, Mr Mackerras agreed that the Grade 5 with whom he was in two-way radio contact while in the crane (Mr Nichol) was responsible for discharging the hatch and that the use of the two-way radio was integral to safety. If someone had been using the two-way radio unnecessarily, this could compromise safety. Even so, he did not consider the use of the term ‘imbecile’ over the two-way radio to be abusive. It may be inappropriate, but it happened regularly. He could not recall the applicant calling Mr Gorlicki an ‘imbecile’ or using the radio to air her frustrations over the roster. Mr Mackerras restated that Mr Nichol had said ‘Shut the fuck up Suzie and get on with your job’ rather than ‘Shut up Suzie’.

[52] Mr Mackerras was shown a record of interview dated 28 November 2013 and marked ‘Susan Francis/Paul Nichol incident’ conducted by Mr Wickham which simply stated, ‘I did not hear or see anything.’ He had read it before signing it. The first time he recalled the use of the expression ‘Shut the fuck up, Suzie’ was after being prompted by the applicant’s Counsel. Mr Mackerras was shown the notes made by Ms Green of a further interview conducted by Mr Wickham and Ms Green. Mr Outram of the Union was also present. He acknowledged that these notes set out that he had been ‘thinking about it’ and that his recollection of the incident between the applicant and Mr Nichol in the meal room was similar to the evidence given above (see para [42]), and that he was not aware of the ‘radio incident’.

[53] In re-examination, Mr Mackerras deposed that Mr Wickham had not described the allegations made by Mr Nichol, he had just asked him what had happened. Nor could he recall if it had been put to him at the meeting of 9 December 2013 whether Mr Nichol had said, ‘Shut the fuck up, Suzie’, they had simply asked if he could remember anything that he had heard over the radio.

Mr David Gorlicki

[54] Mr Gorlicki has worked for Patrick in Newcastle since August 2012 and has been employed by Patrick since 2004, having previously worked in Port Kembla.

[55] In his written statement, Mr Gorlicki referred to the letter sent to the applicant on 16 December 2013 (see para [13]). He had been driving the forklift on the night shift on 27 November 2013. He could recall that the applicant had been talking on the radio, but could not recall exactly what she was saying. He could not recall her having said anything ‘abusive’ or ‘inappropriate’. However, he did hear Mr Nichol, who was working in the hull of the ship say, ‘Shut the fuck up, Suzie and just do your job.’ He did not remember if the applicant had responded. He described Mr Nichol’s comment as derogatory, especially considering it was made in public. Mr Gorlicki said that when he returned the forklift to the warehouse at the applicant’s request, she approached him and asked why he had spoken to her like that over the radio. He replied that it had been Mr Nichol, not him.

[56] Mr Gorlicki had been in the meal room at 5:00am when the confrontation between the applicant and Mr Nichol occurred. He could not recall the applicant entering the room, walking directly to Mr Nichol and shouting at him or grabbing his throat. He described the dimensions of the meal room, noting that it was small. He would have seen this if it occurred. Mr Gorlicki described the relationship between the applicant and Mr Nichol as having been previously friendly. If there had been aggression between them, he would have thought it was unusual.

[57] Mr Gorlicki claimed that he had never received copies of the notes taken by the Patrick representative after the meetings he had had with the Company in relation to the above incidents.

[58] In oral evidence, Mr Gorlicki agreed that the applicant would have been talking to him on the two-way radio on the relevant night. He was driving the forklift at the time, and the two-way radio was on his chest. She was not shouting insults at him. Nor had she called him an ‘imbecile’. Mr Nichol had said ‘Shut the fuck up, Suzie and just do your job.’

[59] Mr Gorlicki said that when he returned to the warehouse, the applicant spoke to him in a ‘stern’ fashion. She was about two metres away from him and he was seated on the forklift. It was turned off and there were other people nearby putting away steel plate which had been discharged from the ship - probably Mr O’Connell, who was approximately 30 or 40m away. He could not recall how far away Mr Ferguson was.

[60] Mr Gorlicki was shown notes of an interview conducted with him by Mr Wickham. They were as follows:

‘We were discharging Plate. Niko said something something [sic] cheeky. I do not recall what. Suzie made accusation to David. David responded that he was not me [sic] it was Paul that said the comment.

At smoko 5AM did not see Paul + Suzie together although I do remember Suzie being heated.’

Mr Gorlicki could not say whether this account reflected what he had said to Mr Wickham on 28 November 2013, though he referred to the wharfies’ rule of ‘looking after your mates’ and noted that this included Mr Nichol.

[61] Mr Gorlicki acknowledged he had signed the above notes, but could not recall what Mr Wickham had said to him when he was asked to sign. He had not been asked whether the applicant had called him an ‘imbecile’ and the respondent’s representatives had not asked if she had been sending insults over the two-way radio. They had merely asked as to the manner in which she had spoken over the two-way radio.

[62] Mr Gorlicki could not recall the applicant having shouted at Mr Nichol, saying words to the effect of ‘Don’t you ever talk to me like that again’ or her having grabbed Mr Nichol by the throat. Nor had he heard the applicant say ‘If you tell me to shut up again, I will punch you in the head.’ It was a small room and he would have seen and heard this had it occurred.

[63] Mr Gorlicki was shown a document said to be the relevant roster. He agreed that it set out that a shift began at 11:00pm, Wednesday 27 and finished at 7:00am on Thursday 28 November.

[64] In cross examination, Mr Gorlicki conceded that he had been mistaken in previously stating that the two-way radio incident took place at approximately 3:00am. This had become clearer when preparing for the proceeding with Mr Howell.

[65] Mr Gorlicki agreed that referring to someone over the two-way radio as an ‘imbecile’ would be aggressive and abusive behaviour. However, this had not been said to him by the applicant. He denied that he said this only because of the ‘wharfies’ rule’. He could not recall the applicant making complaints about the roster over the two-way radio.

[66] Mr Gorlicki was again shown the notes prepared by Mr Wickham after their meeting (see para [60]) and Mr Nichol’s complaint (see para [20]). He denied that Mr Wickham had read Mr Nichol’s complaint to him at the interview on 28 November 2013. He could not recall the exact allegations about the applicant which had been put to him by Mr Wickham, although he remembered Mr Wickham telling him about an incident in the meal room at 5:00am. However, he had not referred to the applicant grabbing Mr Nichol’s throat. Mr Wickham had asked him to read the notes and sign them if it represented what had happened. However, he had not seen a physical assault by the applicant on Mr Nichol or a physical assault by Mr Nichol on the applicant in the meal room.

[67] Mr Gorlicki explained that he had not initially referred to Mr Nichol’s use of the phrase, ‘Shut the fuck up, Suzie’ as both the applicant and Mr Nichol were friends of his and he did not want to get either of them in trouble. He accepted his evidence on this point was different to what he had put to Mr Wickham on 28 November 2013.

[68] Mr Gorlicki clarified that the applicant was not standing on the step of the forklift when she remonstrated with him about telling her to ‘Shut the fuck up’ - she was about two metres away.

[69] Mr Gorlicki was shown notes of a meeting attended by him, Mr Wickham, Ms Green and Mr Outram on 9 December 2014. These notes were as follows:

‘Agreed with statement

Know was cheeky thought “I know how it would’ve affected me”, can’t recall exactly what said

OK if both party know cheeky but didn’t

What was the accusation? couldn't recall, She was annoyed, thought it was me, not PN.

When told not me, said “Ok then walked off.

- seating plan - agree with where PN was, don’t recall where Suzie was.

- when heard of this, tried to recall where she was but can’t, don’t think she was in the room’

He could not recall what statement he was said to have agreed with, but agreed he had signed the document.

[70] Mr Gorlicki acknowledged that he had been trained in relation to bullying, harassment and the Code of Conduct on 19 September 2013. Using the phrase ‘Shut the fuck up, Suzie’ would have breached these requirements and he would have been obliged to report this behaviour, if he had witnessed it. However, he explained that he would have preferred to have dealt with a dispute like this himself. Indeed, the training he had received that day had encouraged employees to try to resolve the situation themselves.

Mr Denis Outram

[71] Mr Outram was Acting Branch Secretary of the Union from mid-late November 2013 when the Branch Secretary took annual leave.

[72] In his written statement, Mr Outram explained that he had spoken to Mr Nichol at approximately 5:00am on 27 November 2013 by telephone. He was seeking advice as to whether the night shift could extend after twelve hours. Mr Outram hung up and called him back approximately 15 minutes later to say that this was not allowed under Part A of the enterprise agreement. Mr Nichol acknowledged this answer and the call ended.

[73] Mr Outram referred to Mr Nichol’s statement and denied that Mr Nichol had raised any allegation of a physical assault by the applicant. He did not believe that Mr Nichol had sounded upset when he had spoken to him.

[74] In cross examination, Mr Outram confirmed that the telephone call from Mr Nichol had been ‘around 5am’. He did not believe that the second phone call had occurred before 5:00am in any event. He could not say whether the phone calls had taken place before or after the alleged physical confrontation between Mr Nichol and the applicant.

Mr David Cox

[75] Mr Cox has been working for Patrick in a casual capacity since February 2013. He has not worked for Patrick in Newcastle since January 2014 and is otherwise employed.

[76] Mr Cox referred to the letter sent to the applicant by the respondent on 16 December 2013 (see para [4]). He explained that he was not carrying a two-way radio and therefore could not comment on any exchange between the applicant and Mr Nichol over the two-way radio.

[77] Mr Cox deposed in the second smoko at 5:00am on 27 November 2013, he made himself a coffee and sat with his back facing the wall. The applicant had sat at the table directly opposite him and Mr Nichol was at the table behind her. After sitting for a few minutes, the applicant moved towards Mr Nichol and said something as she did so. She was not shouting. She had raised her hands towards Mr Nichol, but Mr Cox insisted that she did not grab him around the neck. It looked as though she was reaching to pull his collar. Mr Nichol had reacted by saying words to the effect of, ‘Don’t you touch my fucking throat’. Mr Cox now realised that ‘something serious’ was happening. The applicant moved back and Mr Nichol directed a closed fist punch at the applicant, although he could not see if it connected. However, the applicant did not fall back.

[78] Mr Cox said that the applicant then came down and sat next to him. She had not said anything and neither had anyone else. He asked her what had happened later in the shift. He had spoken to Patrick twice about what had occurred, although there had been a delay, as Patrick’s records did not reflect he was on shift that night. He had been shown notes made during these meetings, but had not been given a copy.

[79] In oral evidence, Mr Cox confirmed that the physical incident between the applicant and Mr Nichol had occurred during the second smoko on the shift.

[80] Mr Cox was shown notes of a meeting which he attended with Mr Wickham and Mr Roach marked ‘Susan Francis/Paul Nichol incident’. They were expressed as follows:

‘David was sitting at Suzie’s table.

Suzy got up from her seat walked over to Paul. David said Suzy made some sort of physical approach. David saw Niko (Paul Nichol) throw a punch in Suzies direction but to my knowledge it was not going to connect. Following on from this Paul yelled out “don’t touch my throat”. That was the end of it.’

[81] In cross examination, Mr Cox conceded that Mr Nichol and the applicant could have entered the meal room before him or after him. He could not recall if the applicant was already seated at his table when he sat down. Her dinner was already on the table and he could not remember her getting up to go to the microwave. He had not heard the applicant turn around and say, ‘Don’t you ever talk to me like that again’ to Mr Nichol. He had not heard the applicant say, ‘I’ll punch you in the head’.

[82] Mr Cox had seen the applicant place both her hands near Mr Nichol’s collar region, but could not say exactly where, as his view was blocked. He thought that they were just ‘mucking around’. It could be a type of threatening behaviour and it was only after this point that Mr Nichol reacted by raising his own hand. He had yelled out before punching the applicant with his right hand. They were approximately one metre apart and Mr Nichol had thrown a punch across the table.

[83] Mr Cox insisted he had not spoken to the applicant or anyone else about this incident between its occurrence on 27 November 2013 and his first interview by Patrick on 4 December 2013. He had thought that it was a ‘bit of a joke’ and he had not reported it. He could not recall having seen Mr Nichol’s complaint (see para [20]). He accepted that the notes of his interview of 9 December did not refer to a ‘closed fisted punch’. However, he did not accept a distinction between this and his reference to a ‘punch’. Mr Cox acknowledged that he should probably have reported the incident.

Mr Bradley Gough

[84] Mr Gough has been working at Patrick’s Newcastle operations since August 2011. On most shifts prior 27 November 2013, he had been rostered as a Team Leader, although he has not been rostered as a Team Leader since then and casual employees now fill this role. He is in a ‘relationship of sorts’ with the applicant.

[85] In his written statement, Mr Gough referred to the letter sent to the applicant by Patrick on 16 December 2013 (see para [13]). He explained that on the night shift of 26 November 2013, he had had a two-way radio in his capacity as Team Leader. As Team Leader, he would be ‘keeping an ear on what is going on’. He had not heard the applicant engage in any inappropriate behaviour. He was conscious of any perception of favouritism involving the applicant and would have ‘pulled her up’ if he had. However, he did hear someone say, ‘Shut the fuck up, Suzie’, to which there was no response. He thought someone was just ‘mucking around’.

[86] Mr Gough said that he was present in the meal room during the smoko in which the alleged physical confrontation between the applicant and Mr Nichol took place, but he could not recall if it was at 5:00am or earlier. He was sitting and eating his dinner as a few other people entered the room. The applicant entered, walked up to him and talked to him about log sheets and then went to put her dinner in the microwave. He did not witness the confrontation, as he had gotten up to make himself coffee. Nevertheless, he specifically refuted that the applicant had entered the meal room shouting and walked directly to Mr Nichol. He had heard Mr Nichol say words to the effect of ‘Don’t touch me’ and ‘I’ll have you up for assault.’ Again, he thought that they were just having a joke, as they usually did.

[87] Mr Gough did not believe that there would be any issues that would prevent him from working with the applicant if she were reinstated. He described her as one of the best Tally Clerks at Patrick’s Newcastle port.

[88] In oral evidence, Mr Gough confirmed that he had acted as the applicant’s support person at the first interview and was interviewed by Ms Green and others at a later point.

[89] Mr Gough recalled the applicant calling Mr Gorlicki for assistance over the two-way radio and this was why he knew that the applicant was not ‘shouting insults’ or had called anyone an ‘imbecile’. At some point she had said words to the effect of, ‘Dave Gorlicki whereabouts are you? We need a hand in the shed. Can you come into the shed and give Justin and myself a hand sorting out cargo?’ He thought that the time that Mr Nichol said ‘Shut the fuck up, Suzie’ would have been around 11:00pm and that people were working with steel plate on the wharf at the time. Mr Nichol was working as the Hatch Foreman.

[90] Mr Gough deposed that he had not been in the meal room at the 5:00am break, although he had been there for the first break. At 5:00am, he could recall Mr Nichol and Mr Mackerras were discussing shift extensions under the enterprise agreement. Mr Nichol had called Mr Williams and then Mr Outram from the Union, at around this time.

[91] It was Mr Gough’s evidence that when he had heard Mr Nichol say ‘Don’t ever touch me again’, he had turned around and saw Mr Nichol ‘ranting and raving’, but there was nobody near him. The applicant was standing two metres away from Mr Nichol. Mr Nichol had repeated ‘Don’t ever touch me again’, two or three times. Mr Gough said something like, ‘Some people have got to pay for that’ as a joke. He left the room.

[92] Mr Gough expected that where members of the Union have a grievance with each other, they would usually go to the Shift Delegate. If the Shift Delegate was unsuccessful in resolving the difficulties, it would be brought to the attention of more senior Union officials.

[93] Mr Gough was shown notes of a meeting between the applicant and Mr Wickham with Mr Ryan. Mr Gough had attended as the applicant’s support person (see para [25]). The notes had not been read to him, but he had signed them at the time. He and the applicant had both had very little sleep. He had actually called the Operations Manager to postpone the meeting as he felt that the applicant was in no state to participate, but she later said she just wanted ‘to get it over and done with’ and they attended. The applicant had been crying throughout the interview. Mr Gough claimed that the applicant had gestured rather than actually sworn in the interview when she referred to the comments directed to her over the two-way radio. She had substituted the word ‘fuck’ with ‘eff’ as she did not want to swear in front of management. Mr Nichol’s complaint had not been read to them and their request to view it was refused. After they left the room, Mr Wickham had called out to them in the hallway and asked them to sign the notes. He and the applicant had done so, but the applicant was ‘an emotional wreck’. In any event, he did not believe it was a complete record of the interview.

[94] Mr Gough was shown a document said to be reflective of rosters. He said that he had attended a shift on the evening of 27-28 November 2013. Inlater evidence,Mr Gough agreed that the roster appeared to demonstrate that the applicant had also been on a shift on the evening of 27-28 November 2013.

[95] Mr Gough agreed he had prepared and circulated a petition in support of the applicant (see para [49]). Mr Paul Curtley, who was on night shift, had also organised for a number of people to sign it.

[96] In cross examination, Mr Gough emphasised his impartiality, despite his ongoing relationship with the applicant. He had not seen her witness statement and he could not say whether she had seen his statement.

[97] Mr Gough did not accept that calling someone an ‘imbecile’ over the two-way radio would be abusive, but agreed that it would be inappropriate. In any event, he had not heard the applicant call Mr Gorlicki an imbecile. There was not much talk over the two-way radio that night and some workers on the ship were using hand signals, rather than the two-way radio as the area was well lit. The applicant had said ‘Dave Gorlicki, where are you? Can you come into the shed and help Justin’ rather than ‘Are you going to bring that forklift into the shed or what?’ He believed that these comments amounted to pretty much the same thing. He agreed that there had not been a supervisor on this particular shift and he was the highest ranking member of the team on the shift.

[98] Mr Gough elaborated that he had heard someone say ‘Shut the fuck up, Suzie’ about one hour before the first break, at about 11:00pm. He had not known it was Mr Nichol at the time. He accepted that this was inconsistent with the notes made of his interview on 10 December 2013, which set out that this had occurred at about 3:00am. He had read and signed these notes without amendment. He could have missed it and noted that the date of the notes was also incorrect in that they set out that the interview occurred on 10 December 2013. He believed that it had taken place in January 2014 as it had been ‘well over a month’ after the incident. In fact, he had complained about the delay to Ms Green and Mr Wickham.

[99] Mr Gough agreed that he had referred to the applicant as ‘feisty’ in the interview with Ms Green because she was outspoken and stood up for what she believed in. This did not mean she would be forceful to the extent of assaulting someone. Mr Gough accepted that he could not give evidence about whether a physical incident had occurred between the applicant and Mr Nichol in the meal room, as he had had his back turned to them. Mr Nichol’s voice had been raised, but he did not sound angry or aggressive. He accepted that Mr Nichol saying ‘Don’t touch me’ was likely to be in response to being touched.

[100] Mr Gough acknowledged that he had attended training in relation to bullying and harassment conducted by Ms Green in September 2013 and that this training set out the requirement for respectful behaviour. He had been responsible on the night of 26-27 November 2013 for reporting inappropriate behaviour and the comment, ‘Shut the fuck up, Susie’ should have been reported. However, Ms Green had emphasised at the training that they should try to resolve little incidents and he classed this one in that category.

[101] Mr Gough agreed that he was unaware of what Mr Curtley may have said to persons signing the ‘petition’ in support of the applicant (see para [49]). He was disappointed in the conduct of Mr Nichol and Mr Carter in relation to this matter. He did believe they had lied, but had rather exaggerated the issues. He agreed that he had published the following comments on his Facebook account:

‘Can’t believe the c#nts [sic] I have to work with, and their bullshit lies. everyone will find out, count on it.

...

All the bullshit with Sussie

...

No unity on the wharves anymore. very disappointed in the action of a few people.’

[102] Mr Gough did not accept that the applicant would experience difficulty if she returned to the workplace, as they were all professionals. He accepted that there had been unprofessional interactions. He then said:

‘But we’re not professionals, we’re wharfies. You’ve got to understand that. We’re not -what have we got to bring lawyers to work now, do we, to watch we [sic] to each other?’

[103] In re-examination, Mr Gough said he had had discussions with Mr Grech about complaints concerning his rostering and criticised Mr Carter for having gone ‘straight to the boss’. Mr Grech had not been happy with the applicant because she was going to bring some of his rostering practices to the Committee’s attention. He also thought other people on the Union Committee might not have liked the applicant.

For the respondent

Ms Tamara Green

[104] In written evidence, Ms Green referred to the Asciano Group’s Code of Conduct and stated that she had given a presentation on the code, the ‘Asciano Values’ and the Bullying and Harassment Policy. The complaints process under this Policy sets out that a complaint should be made to the employee’s direct manager, then the ‘two up’ manager and, if not resolved, then with a Human Resources representative.

[105] Ms Green explained that she became aware of the allegations of physical and verbal assault involving the applicant in the course of a phone conversation with Mr Wickham at approximately 7:30am, 28 November 2013. She had told Mr Wickham that an investigation needed to occur.

[106] Ms Green described her participation in a series of interviews of Patrick personnel on 9 and 10 December in relation to these allegations. Mr Wickham had prepared a summary arising from previous interviews he had conducted and Ms Green used this as a guide. She no longer had a copy of this document. Mr Outram was present in each of these meetings as a support person. Mr Carter attended with Mr Nichol and Mr Gough had declined to have a support person.

[107] Ms Green claimed that in the course of each interview on 9-10 December 2013, Mr Wickham would read out a copy of the previous statement given by each person and each person confirmed that this statement was correct. They were also asked if a diagram setting out the locations of people in the meal room was accurate. Ms Green took notes during these interviews and showed them to each interviewee for them to read and sign. None of the interviewees asked for a copy of these notes. They were annexed to her statement in this proceeding. Ms Green used these notes to prepare a document, which she said established the following:

‘Claims/statements corroborated

(a) Mr Nichol’s claim that Ms Francis was shouting (over the radio) at operators in an aggressive manner was corroborated by Mr Ferguson;

(b) the Applicant’s claim that Mr Nichol said “Shut up Suzie” (over the radio) was accepted by Mr Nichol and corroborated by Mr Ferguson and Mr Gough;

(d) Mr Nichol’s claim that Ms Francis stormed across the room and grabbed Mr Nichol by the throat was corroborated by Mr McIntyre;

(e) Mr Young and Mr Gough overheard Mr Nichol saying to Ms Francis don’t put your hands on my throat again;

(f) Mr McIntyre corroborated that Mr Nichol flicked Ms Francis’ hands away from his throat as a reaction to her grabbing his throat;

(g) Mr Cox corroborated that Mr Nichol remained seated;

(h) Mr Young, Mr Ferguson, Mr Cox and Mr O’Connell stated that they hadn’t witnessed this type of behaviour before and thought Mr Nichol and Ms Francis may have been playing around;

(i) Mr Gough and Mr Mackerras stated that they seen previous joking between Mr Nichol and Ms Francis but not like this; and

(j) Mr Mackerras confirmed that Mr Gough had made a comment like “I paid money for this”.

Claims/statements made by one person only

(k) Mr McIntyre confirmed that Ms Francis walked into the lunch room and straight up to Mr Nichol;

(l) Ms Francis sat down in the meal room and turned around and said to Mr Nichol “don’t you ever talk to me like that again”. That in response, Mr Nichol said “go on then”;

(m) Ms Francis walked over to Mr Nichol and touched him under the neck, and at this point, Mr Nichol punched Ms Francis in the neck;

(n) Mr Young confirmed that Ms Francis wasn’t sitting when he turned around in response to overhearing Mr Nichol saying don’t put your hands on my throat again;

(o) Mr Cox saw Ms Francis stand u;

(p) Mr Cox confirmed that Ms Francis had her back to him when he saw a punch but nothing heated;

(q) Mr J Roach notice Ms Francis was in a foul mood and had been complaining about shift equity;

(r) Mr Gorlicki heard Mr Nichol made [sic] a cheeky comment over the radio;

(s) Mr Gorlicki confirmed the Applicant accused him of the making the comment, but could not recall the exact accusation;

(t) Mr Gorlicki could not remember where Ms Francis was in the meal room;

(u) Mr O’Connell confirmed that ms Francis walked into the meal room and started [sic] “Niko, don’t ever talk to me like that again”;

(v) Mr Gough confirmed that he knows Ms Francis can be feisty;

(w) Mr Gough confirmed that there was nothing to prompt the events in the meal room outside of the radio incident; and

(x) Mr Gough confirmed that Ms Francis wasn’t yelling over the radio at the forklift operators, more of a stern tone.’

[108] As a result of their inquiries, Ms Green and Mr Wickham made a preliminary finding that the applicant had been shouting aggressively at operators over the two-way radio and that Mr Nichol had said, ‘Shut up Suzie’. Subsequent to this, the applicant had walked straight up to Mr Nichol in the meal room and said ‘Don’t you ever speak to me like that again’. She grabbed his throat, while Mr Nichol remained seated. He flicked her hands away, saying ‘Don’t put your hands on my throat again.’ Ms Green then prepared a letter for Mr Wickham on 16 December 2013 requiring the applicant to attend a show cause meeting on 19 December 2013 (see para [13]).

[109] Ms Green then prepared a document for Mr Wickham in the lead up to the meeting on 19 December 2013 with a list of questions for the applicant. The meeting was conducted with the applicant (who had provided a written response to the allegations), herself, Mr Wickham and Mr Outram. Mr Wickham made notes throughout this meeting. Mr Outram had raised concerns in relation to the length of time the process was taking. However, Ms Green had emphasised the need for due diligence. During a short break, Mr Wickham and Ms Green read the applicant’s written response and then told her that she would be called the following day to organise a further meeting. Ms Green emphasised that no findings had been made at this point. The meeting was subsequently arranged for 9 January 2014.

[110] The same persons attended the meeting on 9 January 2014 and Mr Wickham again made notes. Ms Green explained that the meeting was held at the Newcastle Stevedores offices as Patrick’s Newcastle offices were being painted. The only other available venue would have been the meal room and it was thought that this venue would be inappropriate. At the meeting, the applicant claimed she had not used abusive or foul language over the two-way radio and that there had been no lift in progress when she had been told to ‘shut up’. She further claimed that she had been seated in the meal room before approaching Mr Nichol. She had said, ‘By the way don’t you ever talk to me like that again’. Mr Nichol had responded by saying, ‘What are you going to do about it?’ When she ‘encroached in Mr Nichol’s space’, he had punched her.

[111] Ms Green described the applicant suddenly using herself as a ‘puppet’, in that she had sought to move Ms Green’s arms to establish what had occurred between herself and Mr Nichol. Ms Green said she was surprised by this and felt that it was inappropriate. When the applicant had started to cry, Ms Green had offered her a break. However, she and Mr Outram insisted they continue. The applicant had also complained as to shift allocations and her perceptions that she was being treated unfavourably. At the conclusion of the meeting, the applicant was told that she would be informed of a result after consultation with more senior people in Patrick had occurred. The applicant’s suspension on pay was maintained.

[112] On 10 January 2014, Ms Green sent an email to Mr Sommer setting out the findings of herself and Mr Wickham as follows:

‘Incident

In the early hours of November 27, approximately 3am, Susan Francis was heard to be communicating over the radios in a manner which has been described as abusive and inappropriate

This prompted a response from Paul Nichol’s of ‘shut’ up. As Susan was not aware of who had made the comment, she approached who she believed to have made the remark with words to the effect of ‘don’t you ever talk to me like that again’

At this point, Susan was advised of who had actually made the comment and nothing more was said

At approximately 5am, in the smoko room, Susan confronted Paul Nichol’s about his comment. There are a number of statements that confirm Susan walked/stormed into the room and directly up to Paul. The version of events that has been provided by Susan in respect to her actions at this point have altered three times

Once Susan reached Paul, she grabbed him by his throat while continuing to yell words to the effect ‘don’t you ever talk to me like that again’ and ‘don’t put your hands on my throat again’. These statements have been confirmed by a number of other employees

Susan states that Paul retaliated by punching her on the chin which ricocheted, hitting her shoulder. There are no statements confirming such action, rather a gesture to flick/push away in response to Susan’s actions

Other considerations

It was evident in the show cause meeting that Susan has a lack of trust and respect for the management team, creating a hostile environment for her to return too [sic]

Susan has been employed by us for approximately 12 months

Bullying and Harassment training was completed by both Susan and Paul in September, 2013

At no point through this process has Susan offered to apologise for any of her behaviour and the implications that has had [sic] on this situation

It was also confirmed that Susan was in a foul mood prior to the commencement of this shift due to her belief that there was an inequity occurring with shift allocation

Findings of the investigation

Through the investigation, the allegations that had been put forward by Paul Nichol have all been validated by numerous individuals

In the show cause meeting that was held on Thursday 9 January, 2014, Susan again put forward a varied version of events from the morning in question

Recommended outcome

Termination of employment

Discussions have been held with Eliza and Scott and they are supportive of the process which has been followed and the recommendation above. Could you please review the above with Philip and provide your approval to proceed down this path.’

[113] Mr Sommer subsequently sent Ms Green an email confirming that he had discussed the matter with Mr Philip Tonks, Director. They both had agreed with the recommendation to terminate the applicant’s employment. The applicant was informed of this at a meeting on 14 January 2014 and handed a letter (see para [3]).

[114] Ms Green referred to the applicant’s statement and denied having met with Ms Michelle Myers in relation to this matter. Nor could she remember Mr K Roach attending a meeting with herself and the applicant. The reason that Mr Nichol had not been stood down was that it had been determined that he had not engaged in misconduct requiring that he be stood down.

[115] Ms Green highlighted the ‘admission’ by the applicant that she had assaulted Mr Nichol, a loss of trust and confidence between the parties, the non compliance with Patrick’s policies and Patrick’s health and safety obligations as reasons why the applicant should not be reinstated.

[116] In further oral evidence, Ms Green was shown an allocation work sheet. She explained that it set out that if the bulk of a shift was in one day, it would be listed on that day, even if that was not the day the shift actually finished.

[117] In cross examination, Ms Green agreed that her lack of direct involvement in the meetings of 28 and 29 November 2013 meant that she relied on Mr Wickham’s notes and her discussions with him in taking those meetings into account. Ms Green agreed that Mr Sommer was not directly involved in the investigation and she had provided information to him by way of the email on 10 January 2014 (see para [112]). She understood he would be relying on this in making his decision.

[118] Ms Green could not recall as to whether the text of Mr Nichol’s complaint had been put to Mr Gough in the interview with him on 9 January 2014. She now accepted that her statement in the email that the applicant had grabbed Mr Nichol by the throat while shouting ‘was confirmed by a number of employees’ was not correct in that it was not sufficiently specific. However, she insisted that her statement that ‘the allegations that had been put forward by Paul Nichol have all been validated by numerous individuals’ was correct. She now accepted that Mr Nichol’s statement that the applicant had been ‘shouting insults’ or called anyone an ‘imbecile’ over the two-way radio was not corroborated by anyone. She could not recall specifically asking Mr Gorlicki questions on these points.

[119] Ms Green initially believed that Mr Ferguson’s statement at the meeting with Mr Wickham that the applicant had given Mr Gorlecki, ‘a bit of a spray’ was corroborative of Mr Nichol’s statement that the applicant had shouted aggressively over the two-way radio over a number of minutes. ‘What are you doing? Come and give us a hand’ could be said in an aggressive tone, but could not be said to be corroborative of shouting aggressively over the radio over a number of minutes. She now conceded that Mr Nichol’s allegations that the applicant had been aggressively shouting insults over the two-way radio was not corroborated. In fact, it could be said that Mr Ferguson’s view generally corroborated the applicant’s evidence. Mr Nichol had never been disciplined for saying ‘Shut up, Suzie’ over the two-way radio.

[120] Ms Green initially asserted that Mr Nichol’s allegation that the applicant had ‘stormed’ into the meal room while shouting and then walked up to him was corroborated by Mr O’Connell. On review, she accepted that Mr O’Connell’s characterisation of them ‘clowning around’ was not corroborative of Mr Nichol’s allegation at all. None of her notes (other than those arising out of the interview with Mr Nichol) referred to the applicant threatening to punch Mr Nichol in the head. She now conceded that she would probably have made a note if any of the interviewees had made reference to this observation. In fact, the size of the room meant that if the applicant had shouted, everyone would have heard her and this was contrary to what they had said in their interviews.

[121] Ms Green maintained, however, that Mr O’Connell’s statement corroborated Mr Nichol’s view that the applicant had walked directly up to him, though she accepted that she would have come through a door to which Mr O’Connell had his back. In fact, the note she had made during the 9 December 2013 interview with Mr O’Connell quoting the applicant saying, ‘Nicko, don’t ever talk to me over the radio like that again’ was corroborative of the applicant’s evidence. On reflection, Mr O’Connell’s responses in the interviews were corroborative of significant parts of the applicant’s account.

[122] Ms Green was taken to the notes of interviews with Mr McIntyre and accepted that his references to the applicant ‘cuddling’ Mr Nichol or her having two hands around his throat were not corroborative of Mr Nichol’s allegation that the applicant had had one hand around his throat with another held up as if to strike him. There was no other account to corroborate this. Nor was Mr Nichol’s account of not having touched the applicant consistent with Mr McIntyre’s recall that he had ‘flicked’ the applicant’s hands away. In any event, Mr McIntyre had said that the applicant had not ‘stormed up’ to Mr Nichol. Ms Green now accepted that Mr McIntyre’s interviews were not corroborative of Mr Nichol’s allegations.

[123] Ms Green explained her view that the applicant had changed her version of her events a number of times. She and Mr Wickham had noted inconsistencies as to whether Mr Nichol had said ‘Shut up’ or ‘Shut the fuck up’. At one time she said she had asked Mr Gorlicki to come into the warehouse to assist, at another she claimed she had said ‘Are you coming in here or what, Gorlicki’. Ms Green identified another inconsistency in that the applicant said she had spoken to other people in the meal room before approaching Mr Nichol. Ms Green also considered the applicant’s differing account of being punched in the neck or being punched in the chin and ricocheting into her throat, as another inconsistency. She now accepted that these inconsistencies did not strike at the core of the applicant’s account and her characterisation of them in the letter to Mr Sommers was misleading. She maintained that the applicant statement that she had ‘lightly touched’ Mr Nichol on the chest was an admission of assault.

[124] In response to a question from me, Ms Green confirmed that she had not previously been involved in an investigation involving allegations of assault where an employee had been dismissed, although she had been involved in other investigations which had led to the dismissal of an employee.

[125] In re-examination, Ms Green said that she or Mr Wickham would have read the notes from Mr McIntyre’s initial interview to him in the subsequent interview.

Mr Scott Young

[126] In written evidence, Mr Young deposed that he had been in the meal room during a break in the shift on 27 November 2013 at approximately 5:00am. He had seen the applicant and Mr Nichol. The applicant was standing and Mr Nichol remained seated. He had heard heated words, but could not recall them exactly. However, he recalled that Mr Nichol had said ‘Don’t put your fucking hands on my throat again’. The applicant then walked out of the room.

[127] Mr Young said that he was interviewed by Mr Wickham and Mr Ryan on 29 November 2013, although he did not have a support person. He attended a further interview with Mr Wickham and Ms Green on 9 December 2013. He had signed the notes of both meetings.

[128] In cross examination, Mr Young confirmed that he had not had a two-way radio on the ‘dog watch’ shift on 26-27 November 2013.

[129] Mr Young was referred to the notes made of his interview on 9 December 2013. He agreed that he had been surprised at the confrontation between the applicant and Mr Nichol as they generally ‘got on’. He explained that he had heard Mr Nichol say ‘Don’t put your fucking hands around my throat’ and then looked up and saw the applicant walking away. It was possible that the applicant had sat down again rather than left the room. That was all he had heard.Mr Young said that he was about 1 ½ to 2 metres away from Mr Nichol at the time.

[130] Mr Young agreed that if someone had been walking down the aisle of the small meal room, ‘shouting at the top of their voice’ they would have been easily heard. He was quite sure that the confrontation had occurred during the second smoko break.

Mr Justin Ferguson

[131] Mr Ferguson gave written evidence that during the night shift on 27 November 2013, he had heard the following exchange over the radio:

Applicant:	David, what are you doing? Get in here and give us a hand.
Mr Nichol:	Shut up Suzie.
Applicant:	Don’t tell me to shut up, David.
Mr Gorlicki:	It wasn’t me who said it.

He stressed that Mr Nichol had not said, ‘Shut the fuck up, Suzie’.

[132] Mr Ferguson was interviewed by Mr Wickham and Mr Ryan on 28 November 2013, although he did not have a support person. He attended a further interview with Mr Wickham and Ms Green on 9 December 2013. He had signed the notes of both meetings.

[133] In cross examination, Mr Ferguson was referred to the notes made of his interviews on 28 November and 9 December 2013. He clarified that when he said that the applicant had given Mr Gorlicki a ‘bit of a spray’ he was referring to her saying, ‘David, what are you doing? Get in here and give us a hand.’ The applicant had not been shouting or behaving aggressively. It had not gone on for ‘minutes’. He now could not recall whether the latter exchange between the applicant and Mr Gorlicki had been in person or over the two-way radio, although he agreed his notes of 9 December 2013 appeared to reflect that Mr Gorlicki had brought his forklift around to the shed. He could not recall whether the exchange had occurred before the first or second smoko breaks. Mr Ferguson could not recall having had discussions with other crew during or after the relevant shift about the incident between Mr Nichol and the applicant in the meal room. He had not wanted to get involved.

Mr Bruce McIntyre

[134] Mr McIntyre’s written evidence was that he had worked a 7:00pm-7:00am shift on 27 November 2013 and that he did not know any of the people he was working with, other than Mr Jake Roach.

[135] Mr McIntyre stated that at approximately 5:00am, he had been in the meal room, sitting adjacent to the door. He had seen Mr Nichol seated and the applicant standing either beside or behind him. He had initially thought she was ‘hugging’ Mr Nichol, but then realised she had two hands around his throat. Mr Nichol had, in a non-aggressive fashion, brought up either one or both of his hands to take the applicant’s hands off his throat. He had said something like, ‘Don’t do that again’. The applicant then moved away.

Right. So whatever they were doing, whatever she said, it didn't corroborate what Mr Nichol's complaint was, did it?---No.

Okay. Now, of course, Mr O'Connell doesn't saying anything at all about a physical altercation between the pair, does he?---No, he didn't, no.

...

You had a number of people in that room who said they didn't hear anything before Mr Nichol shouting, didn't you?---Yes.

Without going into specifics, the general theme of that evidence is corroborative of my client's account that she didn't shout at Mr Nichol when she was in that room. Do you accept that?---Yes.

...

Right. Now, one of the - I want to suggest to you that it's not a finer detail, not the sort of thing that you would expect people to differ on when what you're investigating is an allegation that one hand around the throat, the other hand ready to punch me, verses two hands around the throat. I want to suggest to you that one of those, in fact, does not corroborate the other. Do you accept that or not?---Yes.

...

What it's not consistent with is a complaint made by Mr Nichol that my client came charging into the room, a few seconds from door, to where he was, shouting very aggressively, grabbing him around the throat, holding him there with one hand, threatening to strike him. What Mr O'Connell says is not consistent at all with that, would you accept that?---Yes.

...

Thank you. Now, are there any others? Whilst you're looking, you didn't say in your email to Mr Sommer that the inconsistencies were marginal at best, did you?---No. The next inconsistency is where the punch was directed to the neck, which was altered between different interviews and allegations of conflict.

...

Thank you. So - and, again, I want to suggest to you none of those inconsistencies that you've identified are so fundamental as to strike at the core of the version that my client told the company, are they?---No.

...

In that part of your investigations report, for want of a better way to describe it, your email, you say in the show cause meeting that was held on 9 January, "Susan again put forward a varied version of events from the morning in question." Simply saying that without describing them in any real way paints the picture that my client's version of events is materially significantly different - materially or significantly different. Do you accept that?---Yes.

And that would be completely misleading, wouldn't it?---Yes.

...

I think you've accepted this already but just to be clear because it was by reference to something else. I want to suggest to you, firstly, Mr Nichol's version of events have not been validated by numerous individuals. Do you accept that?---Yes.

And his versions have not remained consistent?---Correct.

[286] Mr Sommer’s cross-examination was also candid and illuminating, as the following few examples serve to demonstrate:

THE DEPUTY PRESIDENT: Mr Sommer, did you call up the witness statements that were taken during the investigation to review yourself independently?---No, I didn't, your Honour.

So what did you rely on in making your decision, just the email from Ms Green?

---Correct.

Nothing else?---No.

...

MR HOWELL: If Mr Wickham and Ms Green had accepted in cross-examination that – we'll use the radio allegation for starters, the radio allegation being that the applicant had engaged in abusive and inappropriate use of the radio network. If both Mr Wickham and Ms Green had accepted in cross-examination that the material that they had relied upon to form a view that that allegation was proved did not in fact, when properly assessed, support that conclusion and in fact supported the account given by the applicant, you would have been misled?---On that point, yes.

...

Indeed, you would have been misled. You formed a view, as you've described here, and relied upon in making your decision to dismiss that the applicant's explanation of what had occurred was inconsistent and had varied on a number of occasions during the incident. If Ms Green had accepted based on cross-examination of her email that the core of the applicant's versions of events had not changed and to the extent it had changed at all, it was marginal at best, you had been misled?---I accept that on that point.

...

If the claim that Mr Nichol – sorry, withdraw that. If the claim that the applicant had grabbed Mr Nichol around his throat while continuing to yell words to the effect of, "Don't you ever talk to me like that again," had not been corroborated by anyone, you had been misled, right?---Entirely uncorroborated?

Uncorroborated?---Correct.

...

And if someone had said that the cuddle corroborated the grip around the throat, one hand ready to punch and you had not been told about that difference and simply told that one corroborated the other, then you would have been grossly misled, right?---Correct.

...

So if in fact the information disclosed to the investigation did not show that the applicant had engaged in conduct that could reasonably be described as aggressive, you would've been misled?---Yes.

[287] In cross examination, Ms Green appeared uncomfortable and nervous, particularly as Mr Howell ‘warmed up’. However, I am satisfied that Ms Green was not an untruthful witness. She gave mostly one word answers which, embarassingly, effectively scuttled her own investigation and findings. Mr Burke asked only a few questions in re-examination, perhaps demonstrating that Ms Green’s evidence had been manifestly unhelpful to the respondent’s case. Nevertheless, I thank them both and Mr Sommer for not labouring to defend the indefensible.

[288] Ms Green had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent’s evidentiary case. This should not be seen as a criticism, per se of Ms Green, but rather it demonstrates a failure of senior management to recognise the seriousness of the issues and their causes and a failure to independently assess the investigator’s findings and recommendations. Ms Green should not be blamed for these failures.

[289] Similarly, Mr Wickham’s role in the investigation cannot pass without criticism. In an extraordinary admission, Mr Wickham was told by Mr Cox that he had observed Mr Nichol ‘punch’ the applicant (as she had also told Mr Wickham), but he chose not to investigate this claim. This was grossly unfair to the applicant and meant his role in the investigation was seriously compromised. Nevertheless, Mr Wickham gave embarrassingly frank admissions, as these abstracts from transcript disclose:

‘Right. Now, one of the things you didn’t address with any of those people you interviewed after having interviewed the applicant is the applicant's complaint that Mr Nichol had in fact punched her in the exchange she had with him. That's right, isn't it?---From what I recall, that wasn't on the table at that time.

Are you sure about that? Have you got exhibit D there with you; the bundle of material? Can you have a look at page 90?---Yes.

Have you got that?---Yes. Yes.

So it was on the table, wasn't it?---Yes, it was on the table, yes.

Pardon?---Yes.

Not only that, she goes on to say there was a history of harassment from Nicko. That's right, isn't it? Down the bottom, bottom third?---She did say that, yes.

...

He corroborates physical contact by Mr Nichol to the applicant?---Yes.

...

All right, so we've had Mr McKerris and we've had Mr Gorlicki so far. Mr McKerris doesn't corroborate anything. Mr Gorlicki, to the extent he corroborates anything in part corroborates both and otherwise corroborates the applicant, right?---Correct.

...

So again, to the extent Mr Ferguson provides an account, it's consistent with what the applicant had said?---Yes.

...

So to the extent Mr O'Connell gives you an account, it is grossly inconsistent, I want to put to you, between what Mr Nichol has told you and is actually consistent - firstly, do you accept that? It's grossly inconsistent with the idea that, "Susan had stormed across the room, grabbed me by the throat, still yelling, very aggressive"?---Yes.

Again, there's no mention at all of her having come storming in, shouting at the top of her voice, "If you tell me to shut up again I'll punch you in the head"?---Yes.

Again, it's grossly inconsistent with Mr Nichol's account, yes?---Yes.

...

"Susan stormed across the room and grabbed me by the throat, still yelling, very aggressive." Does that sound like cuddling him to you?---No.

That doesn't corroborate that at all, does it?---No.

It corroborates the physical touching, yes?---Yes.

...

The first time we get anyone who says anything about hands on the throat is after all of those interviews and a shift and a half later, yes?---Yes.

...

All right. So coming back then to your affidavit and paragraph 35, the information that you have as at the end of the 28th and 29th, did not actually corroborate Mr Nichol's version of what occurred, did it?---No.

Mr Cox had described in the interview that you had had with him on 4 December having observed a punching action by Mr Nichol towards the applicant, right?---Which page is that, sorry?

Sure, page 170, right at the very, very back; last page. "David was sitting at Susie's table. Susie got up from her seat, walked over to Paul. David said Susie made some sort of physical approach. David saw Nico, Paul Nichols, throw a punch in Susie's direction but to my knowledge it was not going to connect." Yes?---Yes.

His description as recorded by you - "Throw a punch in Susie's direction" - yes?---Yes.

So again, it corroborates the applicant's description of a punch, albeit says he didn't think it was going to connect?---Yes.’

[290] There were other aspects of the investigation which give rise to serious concerns. Mr Sommer was the person who ultimately made the decision to dismiss the applicant on the recommendation of Ms Green. The only information Mr Sommer relied upon was Ms Green’s email of 10 January 2014. Ms Green’s evidence was she had no conversations with Mr Sommer during the investigation or before he made his decision. Ms Green’s evidence was that she now accepts that she did not tell Mr Sommer that any inconsistencies in the applicant’s version of events were ‘marginal at best’.

[291] Ms Green further conceded that some of what she described as inconsistencies in the applicant’s version of events, were in fact the applicant providing further detail of her response. She agreed that none of these inconsistencies warranted the applicant’s dismissal and her recommendation to Mr Sommer was misleading. In Ms Green’s statement (para 49(a)), she claimed that applicant had admitted assaulting Mr Nichol. Ms Green now acknowledges that this was incorrect.

[292] Amazingly, Ms Green chose to only investigate Mr Nichol’s allegations and not any of the claims raised by the applicant in her first interview. These were:

(a) Mr Nichol had punched her;

(b) Mr Nichol’s history harassing her; and

[293] Incredibly, Mr Wickham’s own notes of the applicant’s first interview record that Mr Nichol had a history of harassing people (see para [25]). Either Ms Green ignored this or was not told of it, as she should have been. In any event, Ms Green’s approach to the investigation was biased, incomplete and totally one sided.

[294] As to all the allegations against the applicant, it is plainly obvious that the respondent has not discharged the onus it bears in proving the allegations. I turn now to the specific criteria the Commission is required to take into account under s 387 of the Act.

Was there a valid reason for the applicant’s dismissal (s 387(a))?

[295] Unsurprisingly, the respondent’s evidentiary case in this proceeding was so hopelessly compromised that there can be only one inevitable answer to the question of whether there was a valid reason for the applicant’s dismissal. That answer must be in the negative. I venture to say that Patrick and Mr Burke will not be the least surprised at such an outcome, given it was the respondent’s witnesses whose frank and embarassing admissions brought its case unceremoniously undone.

Was the applicant notified of the reason for her dismissal (s 387(b))?

[296] The applicant was notified of the reasons for her dismissal. However, as these reasons have not been made out, this consideration is of neutral relevance in this case.

Was the applicant afforded an opportunity to respond to the reasons for her dismissal (s 387(c))?

[297] The applicant was provided with an opportunity to respond to the allegations. There were at least five meetings with management and she also responded in writing to the allegations. However, as previously mentioned, the respondent chose to ignore her claims against Mr Nichol and did not investigate them. Had it done so, there may well have been a different outcome, other than dismissal.

[298] In addition, I note that the applicant was given no opportunity to respond to the actual decision maker, Mr Sommer. Given Mr Sommer relied wholly on what Ms Green told him in the 10 January email, the applicant was denied an opportunity to correct inaccuracies in the email and inform Mr Sommer of her explanations and her own claims against Mr Nichol.

Was there any unreasonable refusal by the respondent to allow the applicant to have a support person (s 387(d))?

[299] The applicant was not denied the opportunity to have a support person present during her interviews. She attended meetings with either her Union official and or/ her partner and another person. This is a neutral consideration in this case.

Was the applicant warned about unsatisfactory performance (s 387(e))?

[300] The applicant was dismissed for serious misconduct. Accordingly the question of whether warnings were given for unsatisfactory performance do not arise in this case.

Was the size of the employer’s enterprise likely to impact on the procedures followed in effecting the dismissal (s 387(f))?

[301] The respondent is a large, well-resourced business, with a long history of dealing with numerous and contentious issues in the workplace. It failed miserably on this occasion to take the necessary steps to ensure the applicant was treated fairly and it failed to ensure that the allegations against her were properly and thoroughly investigated. Had it done so, I am certain a different outcome would have been the result.

Was the absence of dedicated human resource management specialists or expertise in the enterprise likely to impact on the procedures followed in effecting the dismissal (s 387(g))?

[302] The respondent has access to its own dedicated internal human resource specialists, and no doubt also to expert legal opinion. I note that Mr Wickham had only been employed at Newcastle for eight weeks at the time of the incident. As mentioned earlier, Patrick ill-advisedly entrusted Ms Green to conduct a serious investigation which was not within her experience or expertise to properly conduct. The result became glaringly obvious during the course of the evidence in this case. Given Ms Green’s lack of expertise, it behoved senior management, at the very least, to seek a second or independent opinion on the evidence the respondent had available to it. That this was not done, reflects poorly on the respondent’s senior management. I go as far to say, that had the respondent been given proper legal advice (or it had and rejected it) then this case would not have ended up in arbitral proceedings.

Other relevant matters (s 387(h))

[303] The other matters I consider relevant have been canvassed earlier in this decision. However, I would add for completeness that:

(a) there was no evidence that the applicant had anything other than an exemplary employment history with the respondent;

(b) there was no evidence of any similar behaviour to that which was alleged incorrectly against her either in the workplace or outside it;

(c) the applicant appears to have a large number of fellow workers who would welcome her back to the workplace. 19 employees signed a petition to this effect (see para [49]); and

(d) the applicant is the sole carer for her young daughter.

[304] For all the aforementioned reasons, I find that the applicant’s dismissal on 14 January 2014 was ‘harsh, unjust and unreasonable’ both substantively and procedurally within the meaning of s 387 of the Act. I turn now to remedy.

Appropriate Remedy

[305] The remedies for an unfair dismissal are set out at s 390 of the Act as follows:

‘(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.’

[306] It is plain from a reading of s 390(3) above that the legislature intended to give primacy to reinstatement in circumstances where an employee has been unfairly dismissed and the Commission is required to exercise a discretion as to any orders in respect to remedy. Lest there be any doubt as to this proposition, one of the objects of Part 3-2 of Ch 3, dealing with unfair dismissal, states:

‘(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.’

[307] I also refer to what was said by the Full Bench of the Commission in Colson v Barwon Health[2014] FWCFB 1949, where at para [29], it was said:

‘[29] The passages from which the sentences relied on by the Appellant are extracted clearly indicate that the Deputy President understood and applied the statutory requirements in respect of reinstatement, as does the broader context of his decision. The Deputy President noted the primacy of reinstatement as a remedy for an unfair dismissal. His observations about primacy did no more than state that consideration of reinstatement against the test of whether it is inappropriate was required (and a finding that it is inappropriate is required) before compensation in lieu could be ordered and does not provide licence to search for a reason to order an employee’s reinstatement when that is not appropriate. The requirement to find that reinstatement is inappropriate before considering compensation in s.390 of the Act gives effect to the emphasis on reinstatement in s.390(1)(c) of the Act [footnote omitted].’

[308] In my opinion, there is no sound or cogent reason why the applicant should not be reinstated. Given the primacy placed on reinstatement of an unfairly dismissed employee, it is appropriate that this occur. The evidence of inappropriateness of reinstatement, such as it was, from Ms Green and Mr Sommer (loss of trust and confidence and the seriousness of the allegations) ‘rings rather hollow’ considering my conclusions as to the manifest injustice suffered by the applicant as a consequence of her dismissal.

[309] In Nguen v Vietnamese Community in Australia[2014] FWCFB 7198, the Full Bench of the Commission recently discussed the meaning of ‘inappropriate’ in the context of s 390 and helpfully summarised the relevant case law as to a loss of trust and confidence telling against an unfairly dismissed employee’s reinstatement. At paras [14]-[28], the Full Bench said:

‘[16] We now turn to the relevant question concerning the appropriateness of reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for example if such an order would be futile such as where reinstatement of an employee would almost certainly lead to a further termination of the employee’s employment because the employer has since discovered that the employee engaged in an act of serious misconduct which was only discovered after the employee’s termination or if the employer no longer conducts a business into which the employee may be reappointed. The fact that the employer has filled the position previously occupied by the dismissed employee would rarely, of itself, justify a conclusion that reinstatement was not appropriate. As a Full Bench of the AIRC observed in Smith v Moore Paragon Australia Ltd,:

“It will often, if not typically, be the case that the position occupied by an applicant for relief under s.170CE of the Act will, at the time the application is arbitrated, either no longer exist or no longer be vacant. In our view that bare fact would rarely, on its own, justify a conclusion that an order for reinstatement was not ‘appropriate’. To adopt such an approach would tend to defeat the remedial purpose of the legislation.”

[18] A similar observation was made by Northrop J in Johns v Gunns Ltd

[19] Reinstatement may be inappropriate if an employee is incapacitated because of illness or injury. The weight to be accorded to ongoing incapacity when considering whether reinstatement is appropriate will depend upon all of the circumstances of the case.

[20] The most common argument advanced in support of the proposition that reinstatement is inappropriate is the proposition, variously expressed, that there has been a loss of trust and confidence such that it would not be feasible to re-establish the employment relationship.

[21] In Perkins v Grace Worldwide (Aust) Pty Ltd the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee’s employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court’s finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.”

[22] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was decided under the IR Act, the Court’s observations reproduced above remain relevant to the question of whether reinstatement is appropriate in a particular case.

[23] In speaking of ‘trust and confidence’ in this context we are concerned with that which is essential to make an employment relationship workable. It is not to be confused with an implied term in a contract of employment of mutual trust and confidence, the existence of which was recently eschewed by the High Court in Commonwealth Bank of Australia v Barker.

[24] While it may be accepted that trust and confidence is a necessary ingredient in any employment relationship, it would be wrong to assume that it is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate. As Justice Gray observed in Australasian Meat Industry Employees’ Union v G & K O’Connor Pty Ltd (O’Connor) the development of the law relating to trust and confidence in the employment relationship commenced when that relationship invariably involved a close personal relationship between the employer and employee, but with the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished.

[25] Justice Gray’s remarks were considered by Deputy President Gostencnik in Colson v Barwon Health in which the Deputy President observed:

“I do not take his Honour’s comments to mean that trust and confidence as an element of the employment relationship is no longer important. It is merely recognition that in many cases it will be important to have regard to the totality of the employment, and that in the case of a corporate employer, the loss of trust and confidence in the employee will be by a manager or managers of the corporate employer. But as his Honour observed, in such cases the “critical question must be what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned”. 28 It is important to understand that his Honour’s observations were made in the context of an interlocutory application while His Honour was considering “balance of convenience” arguments against reinstatement on an interlocutory basis. His Honour’s observation about the effect of the shift from a personal to a corporate employment relationship were made as an introduction to his conclusion that the respondent did not provide any evidence on the “critical question” as identified. So much is clear from the following passage:

. . . It might be more significant, for instance, to know the name of Mr Voss’s immediate supervisor and to know the attitude of that person towards him. If the immediate supervisor had no trust in Mr Voss, it might also be relevant to know whether it would be possible to place Mr Voss in another part of the workplace, under another supervisor, who did have such trust. It would also be relevant to know what effect any lack of trust by any manager or supervisor in a particular employee might have on the conduct of operations in the workplace. There is no evidence as to any of these matters.

[43] Resort to an assertion that trust and confidence in a particular person have been lost cannot be a magic formula for resisting the compulsory reinstatement in employment of the particular person.”

In my view, His Honour is merely saying that it is not enough to simply assert that trust and confidence in an employee has been lost. Where this is relied upon then there must be evidence from the relevant managers holding that view and an assessment must be made as to the effect of the loss of trust and confidence on the operations of the workplace. In short, all of the circumstances must be taken into account. This seems evident and is hardly controversial.”

[26] Permission to appeal from Deputy President Gostencnik’s decision was refused.

[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party [footnotes omitted].’

[310] The applicant obtained alternative employment around 2 June 2014 and has been paid a comparable rate of pay to that which she was earning before her dismissal. Accordingly, I propose to make consequential orders for the payment by the respondent to the applicant for all lost remuneration between 14 January 2014 and her reinstatement, less any income earnt by the applicant during this period.

[311] A further order will be made that the applicant’s continuity of service shall not be taken to have been broken by her dismissal.

[312] The applicant’s reinstatement to her former position as a Senior Tally Clerk shall take effect within 14 days of today or such other date as may be agreed by the parties.

DEPUTY PRESIDENT

Appearances:

Mr A Howell of Counsel with Mr A Jacka of the Maritime Union of Australia for the applicant.

Mr S Burke, Solicitor with Ms T Green and Ms C Ross for the respondent.

Hearing details:

2014:

Newcastle.

27, 28, 29 May

13, 14 August

Printed by authority of the Commonwealth Government Printer