Ustick v Technological Resources Pty Ltd (Rio Tinto) - [2024] FedCFamC2G 1252

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ustick v Technological Resources Pty Ltd (Rio Tinto) [2024] FedCFamC2G 1252

File number(s): BRG 622 of 2023

Judgment of: JUDGE VASTA

Date of judgment: 20 November 2024

Catchwords: INDUSTRIAL LAW – Termination of employment – whether applicant made complaint – whether applicant terminated because he was absent while ill – where respondent discharged onus

Legislation: Fair Work Act 2009 (Cth), ss 340,341, 352, 361

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Queensland Nurses Union v Australian Red Cross Society Pty Ltd and ors [2016] FCCA 2320

Wong v National Australia Bank [2022] FCAFC 155

Division: Division 2 General Federal Law

Number of paragraphs: 222

Date of last submission/s: 13 November 2024

Date of hearing: 11,12 and 13 November 2024

Place: Brisbane

Counsel for the Applicant: The Applicant appearing on his own behalf

Counsel for the Respondent: Ms Brooks

Solicitor for the Respondent: Minter Ellison
ORDERS

BRG 622 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BRETT USTICK

Applicant

AND:
TECHNOLOGICAL RESOURCES PTY LTD (RIO TINTO)

Respondent

ORDER MADE BY:

JUDGE VASTA

DATE OF ORDER:

20 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The application filed on 11 December 2023 is dismissed.
2.There be no order as to costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION

The Applicant, Brett Ustick, was born on 16 October 1971. He began working at the Respondent company, Technological Resources Pty Ltd (which is a subsidiary of Rio Tinto), on 15 March 2019.
The Applicant claims that he made a number of bona fides complaints against two of his supervisors, David Collopy and Wayne Gibson. The Applicant claims that he was sick for a number of days in March 2023. He claims that he was given a warning letter because he did not attend work on those days for which he was sick.
The Applicant claims that he made more complaints against Mr Gibson. He claims that Mr Gibson fabricated an allegation that the Applicant had sworn at him. The Applicant claims that he was then dismissed because he had exercised his workplace rights in making those complaints.
Rough chronology
The Applicant was employed as a Principal Adviser in the Major Underground Hazards Management Team which was part of the greater Underground Centre of Excellence Team. In this role, the Applicant reported to Mr Collopy.
Mr Collopy was responsible for reviewing the work performance of the Applicant. At the review meeting in March/April 2022, Mr Collopy told the Applicant that he was giving him a rating of four (out of 10) for his performance over the calendar year 2021.
In April/May 2022, Mr Collopy, Mr Gibson and the Applicant all went on a work visit to the United States. During that visit, the three men were in a car when the discussion became somewhat heated over aspects of the work relationship between Mr Collopy and the Applicant. According to Mr Collopy, he was so concerned about the emotional state of the Applicant, that he asked him to pull over so that either Mr Collopy or Mr Gibson could take over the driving. In these proceedings, the Applicant denied that he had been emotional and claimed that he did the whole of the driving that day.
On 11 July 2022, a meeting between Mr Collopy and the Applicant occurred where work issues were discussed. This meeting occurred via Microsoft Teams. While the Applicant spoke of the meeting in general terms in his first affidavit, Mr Collopy, in his affidavit, provided context. The Applicant, in his reply affidavit, then revealed that he had, in fact, made a recording of that meeting. The Court has used that recording (and transcript) as the record of what occurred at that meeting.
Another meeting occurred on 27 October 2022, but this meeting was also attended by a Ms Assim of the HR department. This meeting, too, occurred on Microsoft Teams. Similarly, this meeting was described in general terms in the Applicant’s original affidavit and given more context in the affidavit of Mr Collopy. In his reply affidavit, the Applicant also revealed that he had recorded this meeting. The Court has used that recording (and transcript) as the record of what occurred that meeting.
A further meeting occurred on 1 December 2022 and the participants were the Applicant, Mr Collopy and Ms Kylie Brown, who was the person in charge of the HR department. This meeting also occurred on Microsoft Teams. The meeting was regarding the working relationship between Mr Collopy and the Applicant. Similarly, the Applicant eventually revealed that he had recorded the meeting. A transcript has been provided.
The Applicant had a subsequent phone call with Ms Brown on 6 December 2022. This phone call was also recorded surreptitiously by the Applicant.
An in-person meeting occurred with the Applicant, Mr Collopy and Ms Brown on 13 December 2022. Again, the Applicant later revealed that he had surreptitiously recorded this meeting.
On 15 December 2022, Mr Collopy was promoted to the position of head of the Underground Centre of Excellence. As far as the Respondent company was concerned, from this time on, Mr Gibson then became the supervisor of the Applicant.
I note that in the statement of claim, the Applicant labelled all the occurrences between 11 July 2022 and 15 December 2022, as being “the first matter”.
On 6 March 2023, a team meeting was held, via Microsoft Teams, by Mr Gibson which the Applicant attended. At this meeting, Mr Gibson proposed that there would be weekly team meetings to discuss the work project that was being undertaken at that time.
On 9 March 2023, the Applicant declined the meeting request for the first of these team meetings. There was written communication about this matter.
On 14 March 2023, the Applicant advised that he was ill.
On 16 March 2023, Ms Brown telephoned the Applicant. She telephoned the Applicant again on 22 March 2023.
On 29 March 2023, the Applicant received a written warning. I will talk further about the circumstances leading up to the written warning later in these reasons.
On 30 March 2023, the Applicant made a complaint using the “MyVoice” facility for employees of Rio Tinto.
On 5 April 2023, Mr Gibson met with the Applicant, via Microsoft teams, to reinforce the resolutions in the warning letter.
On 12 and 13 April 2023, there was email correspondence between Mr Gibson and the Applicant where, eventually, the Applicant provided a travel itinerary for an overseas trip to Los Angeles. Mr Gibson approved the trip.
On 6 June 2023, the MyVoice complaint did not proceed to the investigation stage and was handed back to the HR department to resolve. The Applicant was notified of this decision on this date.
On 13 July 2023, Mr Gibson met with the Applicant, via Microsoft Teams, to set the Applicant’s 2023 performance objectives.
On 20 July 2023, Mr Gibson and the Applicant met in person. At this time, Mr Gibson’s team was involved in a task regarding the Diavik diamond mine.
From 21 July 2023 to 27 July 2023, there was quite a deal of correspondence between Mr Gibson and the Applicant regarding the Applicant meeting a timeline for information to be provided in a presentation regarding the Diamond Mine project. I will mention more about this aspect later in these reasons.
On 22 August 2023, a team meeting was held in person, but the Applicant did not attend; instead, the Applicant attended via Microsoft Teams. After that meeting, Mr Gibson phoned the Applicant and spoke to him about his attitude. Mr Gibson alleged that the Applicant swore at him and then terminated the phone call. I will go into more detail about this aspect later in these reasons.
Mr Gibson reported this incident to Mr Collopy and an investigation began. Because of the seriousness of this allegation, the investigation was headed by Mr Craig Stegman, who is the managing director of the Respondent.
On 25 August 2023, Mr Stegman and Ms Cope from HR met with the Applicant to outline the investigation and to give him an opportunity to respond.
The Applicant gave a written response to Mr Stegman on 29 August 2023.
On 30 August 2023, Mr Stegman and Ms Cope met with the Applicant again, and issued him with a show cause letter as to why his employment should not be terminated.
Later that day, the Applicant responded requesting a number of documents or reports. Some of these materials were provided to him immediately. The Applicant said that he needed these documents to adequately answer the show cause notice.
On 4 September 2023, the Applicant sent an email to Mr Stegman explaining that he had not received the additional information and that he required more time to respond.
I note that the Applicant, in his statement of claim, labelled all of these occurrences (though he had omitted some of that chronology) from 6 March 2023 to 4 September 2023, as “the second matter”.
On 12 September 2023, the Applicant said that he contacted the Senior Officer of HR for advice.
On 14 September 2023, the Applicant made another complaint through the MyVoice system.
Also on 14 September 2023, the Applicant provided his final response to the show cause letter.
Ms Cope then advised Mr Stegman that the Applicant had lodged a complaint through MyVoice and also advised Mr Stegman that the show cause process should not proceed further until there had been a resolution of the MyVoice complaint.
Notwithstanding the pause in the process, Mr Stegman still considered the response of the Applicant to the show cause letter.
Mr Stegman made the decision to terminate the Applicant’s employment on 25 September 2023. He awaited the “go ahead” from HR before he took any other step.
On 3 October 2023, the investigation of the MyVoice complaint concluded that there was insufficient evidence to warrant the complaint being brought before an impartial decision-maker.
On 5 October 2023, Mr Stegman and Ms Cope met with the Applicant. They advised the Applicant that his employment would now be terminated.
I note that the Applicant, in his statement of claim, labelled all of these occurrences, from 12 September 2023 to 5 October 2023 (though he missed some of the chronology), as “the third matter”.
The Claim of the Applicant
The Applicant had originally claimed that he had exercised his workplace rights regarding “the first matter”, “the second matter” and “the third matter”. The Applicant had originally claimed that it was this “exercising of rights” which was the cause of the Respondent dismissing him.
On 1 November 2024, the Applicant purported to file an amended statement of claim. After legal argument, I allowed the amended statement of claim to be relied upon by the Applicant.
In the amended statement of claim, the Applicant expanded the parameters of the “first matter” and gave more detail as to the conversation that occurred on 12 September 2023.
The Applicant added an incident that occurred on 29 March 2021 where he alleged that he was told by Mr Collopy not to take any time off and to ensure that his work was done as scheduled notwithstanding that he was about to undergo surgery on his ankle.
Another incident was alleged to have occurred on 19 May 2021 where the Applicant claimed that, during a team meeting, Mr Collopy admonished and disparaged the Applicant. The Applicant claims that he phoned Mr Collopy afterwards and asked him not to address feedback or personal issues in public but in private.
Another incident was alleged to have occurred on 10 June 2022 where the Applicant claimed that he sent an email to Mr Collopy after Mr Collopy had sent a group email which admonished and disparaged the Applicant.
A further incident was alleged to have occurred on 29 June 2022, where the Applicant claimed that he asked Mr Collopy to stop speaking inappropriately during a car trip. This allegedly occurred during work travel when the Applicant, Mr Collopy and Mr Gibson were driving to the mine site during their trip to the USA.
The Applicant also claimed that, in the meeting on 27 October 2022, Mr Collopy made “false and vexatious claims that he raised issues about the Applicant’s behaviour during a meeting on 11 July 2022”.
In the amended statement of claim, the Applicant (referring to “third matter”) claimed that the Senior HR manager, with whom he sought advice on 12 September 2023, had misrepresented information on workplace rights in an attempt to guide the Applicant to not exercise his rights. The Applicant claimed that the senior manager, after hearing his story, suggested to the Applicant that it was not healthy to continue to work in the environment and that it would be better for him to resign and get paid a separation from the company and receive a relocation package back to Perth.
While the Respondent objected to the amended statement of claim because of its filing at such a late stage of the proceedings, their objection seemed to focus upon this last allegation. The Respondent had not been able to take instructions from the senior manager or to arrange for the senior manager to attend court. Nevertheless, I still allowed the Applicant to rely upon this amended statement of claim. I told the Respondent that I would entertain any application for costs if they made such an application. Whilst they originally did make the application and I indicated that I would make an order for costs in a fixed sum, the Respondent eventually did not call the senior manager and therefore the basis upon which I said that I would make an order for costs, did not materialise. The Applicant then withdrew their application for costs.
Even though the Applicant had grouped all of these occurrences into headings of “first matter”, “second matter” and “third matter”, in the amended statement of claim he specifically particularised the 13 workplace rights that he had exercised.
These were:-
·A denial of workplace rights on 29 March 2021 in that Mr Collopy had advised the Applicant not to take any time off and to ensure work was completed as scheduled, despite the Applicant’s “workplace right” to take sick leave to have, and recuperate from, surgery on his ankle.
·An exercise of a workplace right on 19 May 2021, to make a complaint to Mr Collopy that he should not address feedback or personal issues in public but in private.
·An exercise of a workplace right on 10 June 2022 when the Applicant complained to Mr Collopy in an email about Mr Collopy admonishing and disparaging him in a group email.
·An exercise of a workplace right on 29 June 2022 when the Applicant complained to Mr Collopy during a car trip to stop speaking disrespectfully to him.
·An exercise of a workplace right on 27 October 2022 when the Applicant complained to Mr Collopy and Ms Assim that Mr Collopy had a history of poor behaviour towards the Applicant.
·An exercise of a workplace right on 6 December 2022 when speaking to Ms Brown during a phone call.
·An exercise of a workplace right on 9 March 2023 when the Applicant complained in an email about the behaviour and conduct of Mr Gibson.
·An exercise of workplace right on 14 March 2023 when the Applicant sent a message on Microsoft teams to the effect that he was sick and would take leave to recover.
·An exercise of a workplace right on 30 March 2023 when the Applicant used the MyVoice system to make a complaint.
·An exercise of a workplace right on 22 August 2023 when the Applicant decided not to attend the office because he was feeling unwell but was still able to participate in a meeting using Microsoft teams.
·An exercise of a workplace right on 25 August 2023 when in a meeting with Mr Stegman about the investigation into the conduct of the Applicant, the Applicant complained about Mr Gibson.
·An exercise of a workplace right on 14 September 2023 when the Applicant used the MyVoice system to make another complaint.
·An exercise of a workplace right on 14 September 2023 when the Applicant, in his response to the show cause letter, made complaints about the conduct and behaviour of Mr Collopy and Mr Gibson.
The Applicant claims that he was dismissed because he had exercised those workplace rights. The Applicant also claims that he was dismissed because he took leave due to illness.
The Applicant also made vague claims that the exercising of some of these rights “prejudiced his credibility and employment” or “injured his employment placing him in a position of prejudice”. However, those claims are vague and have not been particularised in any way. The Applicant did not plead as to what position he was in before the exercise of his workplace right and how it had changed after the exercise of his workplace right.
Analysing these claims leads to the proposition that the behaviour of Mr Gibson and Mr Collopy is what has “placed him in a position of prejudice” or “injured his employment”. But it was his complaint about those actions that is the “exercise of the workplace right”. In other words, the Applicant is claiming that he suffered “the adverse action” and then exercised his workplace right.
For there to be a contravention of s 340 of the Fair Work Act 2009 (Cth) (“the FW Act”), the exercise of the workplace right must precede the adverse action and not the other way round.
Because of this, I have treated the claim as being one in which the Applicant has said that the exercise of those workplace rights led to the adverse action. being that of his dismissal.
Recordings
As previously noted, the Applicant recorded a number of his interactions. There is no law, in Queensland, which would prohibit the Applicant recording any conversation that he has with another person. The disquiet in this matter is that the Applicant did not disclose that he had recorded the material until the Respondent had filed all of their evidence.
At the time of compiling, and filing, his affidavit, the Applicant knew that he had recorded those conversations. But he did not depose to having committed that action. Instead, he gave vague generalisations about the conversations when, in truth, he could have provided far greater clarity. For example, in deposing the contents of his conversation with Mr Collopy on 11 July 2022, the Applicant simply said that this “was one of many occasions I spoke to him about his behaviour”.
In his affidavit, Mr Collopy referred to the 11 July 2022 conversation and gave a far more detailed version of what occurred in that conversation. In his reply affidavit, the Applicant asserts that Mr Collopy has distorted the truth and that his deposition as to the conversation was designed to disparage and shift attention from his poor conduct. The Applicant only then disclosed that he had a recording and transcript of the conversation.
I’ve chosen that conversation as an example because there is very little that turns on what occurred on 11 July 2022 (except for one matter which I will touch upon later in these reasons). The clear inference is that the Applicant hid these recordings away and waited until the Respondent’s witnesses put forward all of their evidence so that he could, somehow, catch them out in a “gotcha” moment in some effort to destroy their credibility.

The Applicant filed a further reply affidavit and said this about the recordings.
4.In my affidavit of 31 July 2024, I referenced and annexed transcripts of conversations as follows.
5.I recorded those conversations as part of my usual practice while working for Rio Tinto as described in paragraphs 14 to 16.
6. The transcripts were created using Whisper’s Transcribe Audio program.
7.Once transcribed, I reviewed the documents by reference to the audio recording to check and correct errors.
8.I believed these recordings to be lost at the time of writing my initial affidavit filed on the 3 June 2024, due to them having been stored on a hard drive that has become corrupted and unreadable. As such, I was not able to include the transcripts in that first affidavit.
9.Subsequently, I was able to recover the files and I included them as annexures in the reply Affidavit filed on 31 July 2024.
10.I have been able to recover some additional audio files that have been included in this Affidavit as annexures. These were also not available previously.
11.Each transcription is a true and accurate record of the meetings between me and other staff of Rio Tinto as detailed in the title and content of each of the annexed transcripts.
12.I can produce, for the court and for the Respondent, digital copies of the original audio recordings of the meetings for each of the transcriptions.
13.In the interest of providing best possible evidence to the court I have again reviewed all the transcriptions by reference to the audio recordings to check and correct errors. I have the annexed the amended copies to this Affidavit and added -2 to the name. Annexed hereto and marked BU-8-2; BU-11-2; BU-13-2; BU-18-2; BU-19-2; BU 21-2: BU-22-2.
The original intent of recordings
14.During my time with Rio Tinto, and particularly during and subsequent to the Covid pandemic the majority of communication was conducted via web-based video conferencing on programs such as Microsoft Teams and Webex. It became my standard to practice to record meetings, for reference and to provide as minutes for the meetings.
15.For instance, Mr David Collopy, Chief Advisor Major hazards (my supervisor) was based in Perth, while I was based in Brisbane. Our usual verbal communication was via telephone or web-based video conferencing.
16.Recordings of meetings became very relevant, and increasingly so for me, when my then supervisor Mr David Collopy would regularly provide different accounts of conversation and decision. This made me begin to question my own recollection of events so to protect my own sanity I increased what I recorded so that I was able to review and accurately recount events.
I have some problems with this explanation. I asked the Applicant why the recordings were stored on a hard drive that had become corrupted and unreadable. The Applicant explained that the Microsoft Teams application allows for a recording of what transpires during the application’ s use. This means that if a recording is made of a Teams hearing, that recording remains on the database of the Respondent.
I asked the Applicant how the database of the Respondent became corrupted and unreadable. The Applicant said that it was his own hard drive that had become corrupted. I asked how material from the Respondents database would have gotten onto the Applicant’s hard drive. The Applicant said that he had copied it onto the hard drive. He was asked a question by Counsel as to why he did not return confidential material belonging to the Respondent. I then had to warn the Applicant against self-incrimination and adjourned the Court early so that he could seek legal advice. He did so and was prepared to continue with the matter.
Having listened to the recordings, it is obvious to me that these were not recordings that were ever part of the database of the Respondent. The recordings are, quite obviously, recordings made on a mobile phone where the device is set to record and is placed near the speaker of a computer. It becomes self-evident when the recording of the voice of the Applicant, which is loud and clear, is contrasted with the voice of the other participant, which is soft, distant and very difficult to hear.
There are five occasions in which this method of recording was used. There were three times where the recording was utilised during an in-person meeting by the Applicant setting his phone to record and simply putting it in his top pocket.
The Applicant also gave evidence of using an app called “Cube Call Recorder ACR” which is an application that can be downloaded for a fee. Once downloaded, the app is always “on”, which means that any phone call received by that device will automatically be recorded.
I am not sure why the Applicant did not tell the truth about this aspect of the recordings. There were 10 recordings in all. They are:-
·Teams meeting 11 July 2022
·Teams meeting 27 October 2022
·Teams meeting 1 December 2022
·Teams phone call 6 December 2022
·In person meeting 13 December 2022
·Phone call 16 March 2023
·Phone call 22 March 2023
·In person meeting 29 March 2023
·In person meeting 25 August 2023
·Teams meeting 30 August 2023
The First Matter
Using the labelling of the Applicant, “the first matter” encapsulates all of the dealings that the Applicant had with Mr Collopy. The Applicant’s main grievance is that Mr Collopy did not seem to put the same value on the work of the Applicant that the Applicant placed on his own work.
While the Applicant added a number of incidents to “the first matter” in his amended statement of claim, he gave no evidence of those incidents.
The meeting of 11 July 2022 is instructive. Whilst it is that the Applicant gave no evidence of the first four workplace rights that he exercised, he did not plead that what he did, in the meeting of 11 July 2022, was to exercise a workplace right.
However, it is clear that Mr Collopy invited the Applicant to, in effect, make a complaint by giving feedback on what the Applicant saw as any problem with the manner in which Mr Collopy had been performing his duties. The Applicant took up this invitation and, therefore, it could be inferred that he has exercised his workplace right to make a complaint about his employment.
What is interesting, in this conversation, is the following interaction between Mr Collopy and the Applicant. It occurs at the beginning of the conversation. (“C” – Collopy, “A” - Applicant)
C: What’s been happening last week?
A: Well, on Thursday I took a day off because I was fatigued. So, I just slept most of the day, actually. Caught up on my sleep that I didn’t seem to be able to catch up on.
C: What about Wednesday?
A: It was a normal work day. Why?
C: And Friday?
A: Friday, I had some family stuff that I had to do in the morning and then it was a normal day.
C: When you are having time off just tell me, buddy. I’m not going to say no. We have just been on a trip. Just let me know, before, rather than after.
A: Yep
C: That’s all I ask mate, that’s all I ask. Obviously, I’m just trying to work out our work plans and trying to get hold of you and try and finish that document. And you just weren’t available for three days.
A: Well, I don’t know about three days, it was a normal day on Wednesday.
C: You need to drop me a note on what happened on Thursday, and I’ll approve it. We don’t need to put anything in for it as we are owed for some days from the trip. I just need to know ahead of time, buddy. Just make sure we document things like that please. If you need time off because you are sick or you’ve got family issues on, I’m not an unreasonable boss, right?
There were other matters as well that were discussed during that conversation where the Applicant and Mr Collopy let each other know what criticisms or issues they had of each other’s behaviour.
On my listening of the recording, it did seem to me that Mr Collopy acknowledged some of the criticisms and spoke of ways in which he could improve. The same cannot be said of the Applicant who did not seem to truly accept what it was that Mr Collopy was saying. Whilst it is difficult to characterise the Applicant’s tone as being disrespectful, it was hardly a respectful tone given that the Applicant was talking to his supervisor.
Mr Collopy gave evidence that the Applicant did not improve in those aspects. Mr Collopy said that the Applicant did not respond to meeting requests or declined meeting requests with no explanation or any offer of an alternative time for such a meeting to be held.
Mr Collopy said that the Applicant was dismissive towards him and would refuse to complete work that Mr Collopy had asked him to complete without offering reasons why. Mr Collopy said that the Applicant worked from home for the vast majority of the time so that he had minimal meaningful face-to-face interaction with the team.
I do note that Mr Collopy was based in Perth during that time and the Applicant was based in Brisbane. It would seem to me, that the face-to-face contact between the Applicant and Mr Collopy was always going to be minimal, however the interaction between the Applicant and the rest of the team based in Brisbane may not have been optimal because of the penchant of the Applicant to work from home.
Mr Collopy was critical that the Applicant was inattentive and unresponsive and displayed negative body language during the team meetings that were held via Microsoft Teams.
Mr Collopy said that he tried to mentor the Applicant during this period, but he was not making any headway. For this reason, he organised a Teams meeting with the Applicant and asked the HR representative to also attend.
The tone of the meeting on 27 October 2022 was very similar to the tone of the 11 July 2022 meeting. Mr Collopy used a tactic of, to use the vernacular, “pumping up the Applicant’s tyres” and after pointing out all of the positives, then began to speak about the negative aspects.
The Applicant became dismissive of the criticisms. When Mr Collopy spoke about other persons who had given him feedback about the Applicant, the Applicant demanded to know who those persons were rather than focusing on what it was that they were saying. The Applicant then, rather tersely, said that it was obvious to him that there was a lot of talking about his behaviour but no conversation about the behaviour of Mr Collopy.
There was another meeting on 1 December 2022 between the Applicant and Mr Collopy with Kylie Brown from HR also attending. These issues were spoken about further.
There was a phone call via Teams on 6 December 2022 between Ms Brown and the Applicant where Ms Brown discussed many of these issues with the Applicant.
There was a further in person meeting between the Applicant and Mr Collopy on 13 December 2022 and Ms Brown also attended that.
In that meeting, Ms Brown did say that she would pull together “a bit of a working plan” for both the Applicant and Mr Collopy to work on improving themselves. Ms Brown pointed out issues with the leadership style of Mr Collopy. Mr Collopy conceded that these may be issues and invited the Applicant to “call him on it, if he starts doing any of those things”.
When Ms Brown then pointed out issues with the Applicant, there were no concessions made but there were criticisms, again, of Mr Collopy. The tone of the Applicant was objectively disrespectful, and the Applicant, at the conclusion of that meeting, said that he was sorry if he had come across as disrespectful but that had not been his intent.
Ms Brown then emphasised to the Applicant that he could not just take time off without notification. She reminded him that notification was a requirement that all employees had in their role. Mr Collopy added that the Applicant just needed to send him a note before deciding to take time off.
Ms Brown ended the meeting by saying that there were matters that the Applicant needed to change, pick up and improve on because he was not quite meeting the standard of the role. She said that, in a couple of months’ time, if things hadn’t improved, then they were going to assess where they were at, and that it may go through a more formal performance improvement regime.
Ms Brown said to Mr Collopy that if his issues had not improved, then matters would be escalated through to Mr Stegman.
Observations
Whilst I have detailed what occurred in these meetings, they are not truly relevant to the issues that I have to decide. However, they do put the Applicant’s complaints into some context.
The Applicant has deposed to his frustration, surprise and bewilderment. His issue was that, when he left that meeting, he was satisfied that he made complaints about Mr Collopy. He was satisfied that they were listened to by Ms Brown, and he was satisfied that Ms Brown was going to give Mr Collopy a bit of a working plan. Yet, two days after the meeting, Mr Collopy was promoted.
The Applicant felt that his concerns were not truly respected because, if they had taken his complaints seriously, the Respondent wouldn’t, and couldn’t, have given Mr Collopy a promotion.
This aspect is not relevant to any of the issues that I need to determine but the Applicant, as a self-represented litigant, obviously felt the need to vent his spleen about a situation that he found unpalatable. But, I reiterate, it has no bearing upon the issues that I have to decide in this case.
The Second Matter Part 1
Whilst the Applicant has labelled the occurrences in the way in which he has (and I will deal with them accordingly), there are a number of aspects to “the second matter” that need to be seen in their own context before being regarded as part of a bigger context.
The first of these is the occurrences that led to the issuing of the warning letter. This is why I have labelled this aspect as “The Second Matter - Part 1”.
As previously noted, Mr Gibson became the direct supervisor upon the promotion of Mr Collopy. For some reason, the Applicant did not accept that this had happened. He said that he did not acknowledge that Mr Gibson was now his supervisor. On the evidence before me, it was obvious that Mr Gibson was the Applicant’s supervisor. Whilst they may have been peers at some stage in their time with the Respondent, it is clear that Mr Gibson was now promoted to a position in which the Applicant now became his subordinate.
On 6 March 2023, Mr Gibson had a meeting with the Applicant where they discussed an upcoming battery electric vehicle (BEV) workshop that would be conducted in April 2023. According to Mr Gibson, the Applicant expressed concerns about the tight timeframe. Mr Gibson acknowledged that the timeframe was tight and emphasised the importance of the Applicant keeping him well-informed of issues that might arise. Mr Gibson suggested that there be a brief meeting each week to discuss the Applicant’s progress or any problems that may have arisen.
Mr Gibson said that he began to arrange the weekly progress meetings, and he sent the Applicant a meeting invitation for the first meeting to occur on 10 March 2023. The Applicant declined the invitation late on the afternoon of 9 March 2023. He did so in these terms:-
I am not sure what your intentions are with this meeting, but it feels like micromanagement, I have been given this task so allow me to get on with the work and I will ask if I need any further support or assistance.
I would also ask that people are providing information directly to myself (or to the teams page) not through you, again, appears to be micromanagement and an inefficient process.
As such, I am declining this meeting request as I will focus on actually doing the work rather than talking about it.
Mr Gibson said that he found that the email was discourteous (and it is, objectively, disrespectful in tone) but the Applicant could not see how anyone could come to that conclusion. During the trial, I asked the Applicant to look very carefully at what he had written and read it to himself. The Applicant then conceded that the tone was disrespectful.
Mr Gibson replied, quite promptly, (relevantly) in these terms:-
The reason for the weekly progress discussion is the tight timeframe, importance of this work and its prioritisation over all other work. As your leader, the intent of the meeting is not to micromanage you, rather to understand how you are going and if you need help as I have committed us to this work. I have previously discussed this with you and hence the invite so I find your response of concern warranting further discussion, particularly given you didn’t raise this with me when I first mentioned it as we could have talk through the reasoning then and there and resolved any concerns in a more respectful manner. I will arrange a time to speak to you about this tomorrow but ask that you reflect on this in preparation.
I directed the document to you from (third-party) because it was sent to me in relation to a separate query from Kennecott, unrelated to the BEV workshop. I fail to see how this is micromanagement, rather I see it is again supporting the work you are doing. Neither myself, nor any other party has asked for documents to be sent through to get to you, that is the purpose of the document register.
This was an appropriate response. I have mentioned these details because it is the basis of what occurred afterwards. Mr Gibson attended the virtual meeting on 10 March 2023 and waited for 15 minutes in the hope that the Applicant would join the meeting. That hope was forlorn.
Mr Gibson then sent the Applicant a message requesting him to advise of his availability early the following week to have the discussion that was foreshadowed in the reply of Mr Gibson on 9 March 2023.
Mr Gibson did not receive a response over that weekend. At 9:47 AM on 13 March 2023, Mr Gibson sent the Applicant an email to check that he was all right given that Mr Gibson had not heard back from him. At 2 PM that day, having not heard from the Applicant, Mr Gibson telephoned. The Applicant didn’t answer, and Mr Gibson left a message saying that he was checking to make sure the Applicant was okay and asked him to contact Mr Gibson to arrange a time to catch up.
On 14 March 2023, the Applicant sent an email to Mr Gibson which focused solely on the BEV event. Mr Gibson sent a text message to the Applicant telling him that he had not responded to Mr Gibson’s message on 10 March 2023 and that the Applicant needed to contact him. Mr Gibson also sent an email to the same effect.
Just over an hour later, the Applicant sent a message, via Microsoft Teams, to Mr Gibson stating that the Applicant had “jinxed himself and come down with something” and that he would try to sleep it off. The Applicant wrote that he would be “out of action” for at least that day.
Mr Gibson noted that the Applicant appeared off-line and inactive all of the following day (15 March). When the Applicant had not logged in in the morning of 16 March, Mr Gibson telephoned the Applicant. There was no answer and Mr Gibson left a message. He advised the Applicant that, if he was still unwell, a medical certificate would need to be provided.
Ms Kylie Brown became aware of these issues, and she telephoned the Applicant herself later that day. This phone call was recorded by the Applicant using the Cube Call app. Ms Brown told the Applicant that she was ringing for a welfare check because Mr Gibson had not been able to get in touch with the Applicant and had become worried that there was something wrong.
Ms Brown reminded him that he needed to “drop (Mr Gibson) or (Mr Collopy) or even herself a note to say that he would not be in for the day because they had a process. I do note that this conversation was exactly the same conversation that Ms Brown had with the Applicant three months previously, and that the Applicant had with Mr Collopy on 11 July 2022.

The Applicant protested that he had sent through a note a couple of days ago and Ms Brown reminded him that it was a requirement, each morning, to let the leader, or someone in authority, know if the Applicant was not going to be working that day.
On the following day, a Teams meeting was conducted involving various stakeholders involved in the BEV event. The Applicant attended this meeting, as did Mr Gibson, but they were not able to speak one-on-one about the issues that had been raised by Mr Gibson.
On 20 March 2023, Mr Gibson sent an email to the Applicant advising that he had booked a meeting room at 3 PM the following day for a face-to-face meeting. Mr Gibson said there would be a HR representative attending and that non-attendance by the Applicant may result in disciplinary action.
On 21 March 2023, the Applicant sent Mr Gibson and email advising that the Applicant’s father had been rushed to hospital in a serious condition and was undergoing testing. The Applicant said that he would be unable to attend the meeting and would advise further once he knew more.
Mr Gibson telephoned the Applicant and left a message to the effect that the “family matters took priority” and that he expressed his best wishes for the father of the Applicant was asked to be kept informed.
Mr Gibson followed this up with an email acknowledging the family situation. In the email, Mr Gibson wrote that he would be happy to reschedule the meeting to a more suitable time and that he wished the Applicant’s father a fast recovery. He told the Applicant that he could reach out to Mr Gibson if there was anything that Mr Gibson could do to help.
However, the BEV work was still needed to be done, and Mr Gibson was concerned as to whether he needed to reallocate the Applicant’s work to another employee. Because he had only limited contact with the Applicant, Mr Gibson was facing a dilemma.
The Applicant had not contacted Mr Gibson by the morning of 22 March. Ms Brown then telephoned the Applicant. Again, the Applicant recorded this phone call via the Cube Call app. In that call Ms Brown expressed sympathy for the plight of the Applicant with regards to his father. She said that the meeting was going to be rescheduled but there was still a concern as to whether the Applicant could deliver his work in time for the BEV workshop.
The Applicant’s response was that he had spoken to Mr Gibson on Friday. Ms Brown pointed out that this conversation was in the context of a meeting with a number of stakeholders and that Mr Gibson had not had a conversation solely with the Applicant. She asked the Applicant to call Mr Gibson and connect with him on what it was that the Applicant had to do. She told him that it was a requirement and that he had to keep Mr Gibson updated.
Ms Brown pointed out that there was nothing else that was going to be discussed; simply where the Applicant was up to in the work that needed to be done.
Ms Brown relayed this to Mr Gibson who then sent out a meeting request to the Applicant for the following day.
The Applicant replied to that meeting request later that afternoon and, in effect, said that while he was keen to resolve these issues, his primary concern was the health of his father. He said he would continue to progress his task but would be unavailable to attend any meetings in the Brisbane office that week and he wanted the meeting rescheduled.
On the next day, 23 March 2023, the Applicant attended a meeting, via Teams, with other stakeholders. In that meeting, the Applicant told everyone, including Mr Gibson, that he was on track with his work and he did not require any assistance.
After the meeting, the Applicant sent an email to Mr Gibson proposing a date for the “performance meeting” of 29 March 2023. Mr Gibson then sent a meeting request for that date and the Applicant accepted the invitation.
The Applicant recorded this meeting, covertly, by having his phone in his pocket. Ms Assim from HR also attended the meeting. Mr Gibson told the Applicant that, in his view, the Applicant’s actions have amounted to misconduct. Mr Gibson went through the history of the matter from 6 March 2023 onwards. He then asked the Applicant to make whatever comment he wanted.
The Applicant argued that his response on 9 March 2023 was not rude or disrespectful. The Applicant asked Mr Gibson whether he had “reflected” on the emails that he had sent the Applicant. The Applicant said that he felt “bullied and harassed” by the way he wrote those emails, especially expressing that disciplinary action may occur if the Applicant didn’t attend.
The Applicant said that he had let Mr Gibson know that he was sick and that he was taking the rest of the day off therefore “what’s hard to understand that in the next couple of days if I’m not available, oh yes Brett told us he was sick?”
Mr Gibson said that it was not an unreasonable expectation that the Applicant keep his leader in the loop about what was going on. The Applicant replied that “this is the first time I’ve ever heard this”. Mr Gibson reiterated that the Applicant was required to notify him when it was that the Applicant was going to not be at work and that he needed to call him by phone. The Applicant replied, “these are all new things to me - nobody’s ever told me this before”.
The Applicant said that this was the first time he had ever had a reaction to letting somebody know that he was sick and then not follow up on the second day. The Applicant said “I thought it was understood; you’re an intelligent man, surely you could put them together”. The Applicant said that he felt as though he was persecuted for being sick. It was explained to him that the issue was his lack of communication.
At the end of the meeting, the Applicant was handed a written warning. The warning was in the following terms: -
29 March 2023
Dear Brett,
Written Warning: Inappropriate Conduct/Behaviour
On 9 March 2023, I received an email from you declining a weekly progress meeting that I had set up with you to discuss a high priority and important package of work. Your email made assertions that I was micromanaging you, that I needed to let you “get on with your work” and were incorrect in relation to comments of “I am not sure what your intentions are with this meeting, but it feels like micromanagement” and “I would also ask that people are providing information directly to myself (or to the teams page) not through you, again, appears to be micromanagement and an inefficient process”.
I sent you a subsequent email expressing my concerns with your response and a meeting invitation for 10 March 2023 at 11.30am, to discuss my concerns, in which I asked you to advise if the meeting needed to be re-scheduled.
The following ensued:
•You did not accept my meeting invitation or respond via any form of communication by our meeting time on 10 March 2023.
•I waited in the meeting for 15 minutes before leaving.
•I sent you a text message following this, at 11:52am, requesting you contact me to advise a suitable time to have the discussion.
•I had still not received any response or communication from you by 13 March 2023 and you were showing offline for the day and were not contactable.
•I sent a further email at 9.45am on 13 March 2023 to check in and make sure you were ok and to continue attempting to organise our meeting.
•After still not having any contact, I followed up with a phone call at 2pm, as I was becoming concerned for your welfare due to no response.
•On 14 March 2024 at 5:56am, you responded to an unrelated work email from me requiring your input however had not responded in relation to the discussion I had been attempting to set up with you from 9 March 2023.
•At 11:03am on 14 March 2023 you sent a Teams message to myself and a colleague stating “Hi team, I seem to have jinxed myself and come down with something…will try and sleep it off, so I will be out of action for at least today….Brett”.
•You were not online on 15 and 16 March 2023 and no notification was made to me to advise on your continued absence due to being unwell.
•My concern for your welfare led me to contact Human Resources on 16 March 2023, to which a welfare call was made by Kylie Brown, who connected with you via phone.
•There has not been any direct communication with me since 10 March 2023 on your work.
Upon review of these events, we have determined that your behaviour amounts to misconduct. This behaviour is unacceptable and not in line with our value, The Way We Work, Rio Tinto’s Code of Conduct and Rio Tinto’s Performance and Conduct policy.
After careful consideration of all the facts and relevant circumstances surrounding your actions, a decision has been made to issue you with a Written Warning.
Our expectations of you as a Rio Tinto employee are as follows (but not limited to):
•Be available and willing to engage with your leader;
•Make every reasonable effort to contact your leader by phone if you are unable to attend work, at the beginning of each day of your absence;
•Ensure your conduct (verbal and non-verbal) is always professional and in line with Rio Tinto’s values;
•Approach all conversations in a professional manner;
•Be aware of the effect your behaviour and comments may have on others and ensure comments and behaviour are appropriate to all situations;
•Conduct yourself in accordance with our expected values and behaviours as well as The Way We Work.
•You are expected to adhere to reasonable management action, which is justified feedback carried out in a reasonable manner. This includes responding to emails and requests from your leader in a timely and appropriate manner; Taking directions from your leader on tasks and work requests/stop work requests/change of work requests; and other reasonable requests.
•As a team member, you are expected to seek clarity on direction from your leader when you either don’t understand the directions or believe there is a better approach and to engage in two-way communication to resolve his and to support any final decisions made by your leader.
I am concerned by your lack of responsiveness and engagement with me whie you are working remotely. As a result, from 3 April 2023, you are required to come into the office on at least two full days per week, days to be agreed with me, so that I can engage with you in a meaningful manner. I will continue to monitor this arrangement.
A copy of his Written Warning will be retained by the business. Any future breaches may result in further disciplinary action, up to and including termination of your employment.
We understand this time can be difficult for you and your family, therefore should you require the services of BSS, our Employee Assistance Provider, the contact number for BSS Employee Assistance is 1800 30 30 90.
Yours Sincerely,
Wayne Gibson
Senior Manager, Underground Mining Major Hazards Group
Technical
Development &Technology.
The notable aspect is that the Applicant was now expected to be physically in the office, for at least two days per week.
The First Complaint through MyVoice
The day after the Applicant received the warning letter, the Applicant made a complaint through the MyVoice system.
This is a reporting system where employees of Rio Tinto can report concerns of alleged misconduct or improper behaviour connected to Rio Tinto. These reports can be received by telephone, email or online. The complaints are assessed by the Business Conduct Office (BCO) which is an independent arm of Rio Tinto.
Complaints are reviewed through a triage system to see whether they are complaints where a formal investigation may be needed, or whether the complaint was more appropriate for the HR team to manage.
The complaint of the Applicant was received through the call centre channel, and it was described as an “issue with management”. The complaint was triaged by Ms Lyndarine Taylor.
The complaint alleged that Mr Collopy had treated the Applicant unfairly after the Applicant challenged Mr Collopy about inappropriate behaviour. The complaint was also that the Applicant had been issued a written warning for being sick even though he had made Mr Gibson aware of his illness.
The Applicant provided all of his email correspondence with Mr Gibson. Ms Taylor met with Ms Brown and Ms Assim. She was told by Ms Brown that HR had conducted training and one-on-one coaching with Mr Collopy to assist in managing all his employees, not just the Applicant. Ms Taylor was advised that Mr Collopy was no longer the supervisor of the Applicant, and that this role was now being undertaken by Mr Gibson. A copy of the warning letter was given to Ms Taylor.
Ms Taylor then determined that the complaint was not an issue which met the threshold for being referred for an investigation by her team. She was satisfied that the issues raised by the Applicant related to interpersonal, or leadership, issues that he had with Mr Collopy and Mr Gibson. In all of the material that had been given to her by the Applicant, Ms Taylor said that there was no indication that there was a legitimate issue relating to bullying, harassment or retaliation.
Ms Taylor was of the view that the written warning appeared to be reasonable management action taken by Mr Gibson in response to a legitimate issue.
On 8 May 2023, Ms Taylor notified the Applicant to say that the report would now be closed and that the matter would be referred to HR.
On 9 May 2023, the Applicant telephoned Ms Taylor and asked if he could provide further information before the report was closed. Ms Taylor said that he could do so if he wished. Notwithstanding the advice of Ms Taylor, Ms Taylor had to prompt the Applicant to actually provide this information. The information provided were emails between the Applicant and Mr Collopy from 2021 and 2022. Ms Taylor was still of the view that none of that information indicated a concern of bullying or harassment.
On 30 May 2023, Ms Taylor sent the Applicant an email telling him that the outcome of the assessment remained the same and that the report was now being closed. That advice became official on 6 June 2023 with a formal notice.
The Second Matter – Part 2
After the written warning, Mr Gibson did not find any significant improvement in the attitude of the Applicant. Mr Gibson said that the Applicant still failed to respond to emails, messages or telephone calls. He said that the Applicant still failed to provide documents when requested. He said that the Applicant failed to physically attend the office in accordance with the directions he had been given. Mr Gibson also said that the Applicant was submitting work that was below the expected standard.
On 5 April 2023, Mr Gibson had a meeting with the Applicant where he again spelt out what the Applicant needed to do. The Applicant was sent overseas during April.
Mr Gibson had a meeting with the Applicant on 13 July 2023. This meeting was to set the 2023 performance objectives. There was another meeting on 20 July 2023 where many of the same themes were discussed. Mr Gibson reported that, at the conclusion of this meeting, the Applicant acknowledged that there were improvements he could make in relation to the quality of his work.
The team had been assigned a priority task for the Diavik Diamond Mine. The Applicant had agreed to finalise the response. This was needed to be reviewed by Mr Gibson before he was to meet with another senior member of Rio Tinto in the week of 31 July.
On 21 July, Mr Gibson spoke to the Applicant in relation to the finalisation of this task. Mr Gibson said that they agreed that the Applicant would send a meeting invitation to Mr Gibson, Mr Collopy and the senior member of Rio Tinto for 27 July 2023. The Applicant agreed to provide Mr Gibson with a copy of the response before that meeting.
On 24 July 2023, Mr Gibson sent an email to the Applicant reminding him to send the meeting invitation. On 25 July 2023, the Applicant sent a Teams message to Mr Gibson saying that he was unwell and that he would try to sleep it off and would contact Mr Gibson when he had improved. The meeting invitation had still not been sent.
Mr Gibson replied to the Applicant saying that he was sorry that the Applicant was unwell, but he asked the Applicant to advise him if he (Mr Gibson) needed to finalise the response and to arrange the meeting. The Applicant did not respond. Mr Gibson attempted to call him, and the Applicant did not answer.
On 26 July 2023, Mr Gibson again attempted to call the Applicant. The Applicant didn’t answer the telephone but sent a text message stating that he would call back. The Applicant did call back about 30 minutes later. He said that he had slept off his illness the day before and that’s why he was uncontactable. The Applicant said that, while he wasn’t fully recovered, he was working again and would be able to finalise the response that day. Mr Gibson reminded the Applicant that he needed to physically attend the office two days a week and, that if he was too unwell to return to the office, he was to keep Mr Gibson informed of this.
At 4:52 PM, Mr Gibson, who had not received the Diavik response, sent a text message to the Applicant to advise him that he was leaving the office and requesting the Applicant send through the response so that Mr Gibson could review it that evening. The Applicant did not send the meeting request but a member of the Diavik team did so when it was not forthcoming from the Applicant.
The Applicant failed to send Mr Gibson the response. Nevertheless, the meeting still took place on 27 July 2023. Mr Gibson was not fully across the updates because he did not have the response from the Applicant.
Mr Gibson telephoned the Applicant after the meeting and asked why the Applicant had not sent the response. The Applicant said that he worked late and after he had his dinner, he did not go back to his computer and fell asleep.
22 August 2023
The incident that occurred this day could be seen as the straw that broke the camel’s back. That morning, Mr Gibson held his usual meeting with his team. The Applicant was supposed to be there in person but attended via Teams instead.
Mr Gibson then attended an unrelated meeting with Mr Stegman after that meeting. Mr Stegman said that, when they had finished, Mr Gibson went to one of the meeting rooms and had said that he had to make a phone call.
What occurred was that Mr Gibson telephoned the Applicant to asking why he did not attend the office for the scheduled meeting. The Applicant said that he was sick and that he had picked up something during a work trip he had made recently. Mr Gibson reminded him that his attendance at the office was a performance expectation that had been explained to him on numerous occasions.
Mr Gibson said that the Applicant then interrupted him and said that he did not want to hear what Mr Gibson had to say and did not have the energy for it. Mr Gibson explained that the Applicant’s continued absence from the office had been going on for too long and that if he was unable to attend the office because he was unwell, he would need to provide a medical certificate.
Mr Gibson said that the Applicant then yelled in a very aggressive manner and told him:
No, I don’t. I’ve told you I’m not well and I’m still working. Stop making stuff up. You can get fucked.
The Applicant then ended the phone call.
Mr Stegman saw Mr Gibson exit the meeting room. Mr Stegman described Mr Gibson as having a shocked expression on his face. He said that Mr Gibson had told him that he just had a telephone call with the Applicant and that the Applicant had told him to “fuck off”.
The matter was reported to the HR department who began an investigation. Notwithstanding that such an investigation would normally be handled by Mr Collopy (because Mr Collopy is the supervisor of Mr Gibson), considering the history of the Applicant’s dealings with Mr Collopy, Mr Stegman felt that the “buck stopped with him” and so Mr Stegman headed the investigation.

The Applicant did not mention this incident at all in his affidavit. What he mentioned was that he had been accused of swearing in the phone call of 22 August when spoken to by Mr Stegman on 25 August. In his reply affidavit at paragraph 33 (a), the Applicant gives this account as written:-
Mr Gibson said words to the effect that “I’ve only had a few minutes to talk before my next meeting”, he then stated that “I’m sure you know what I going to ask” in a condescending manner, I did not, he then went on to ask “why I was not in the office”, I responded, “as you can tell from my voice in the meeting earlier, I’m not well, I have pick up some bug on my the plane home from overseas”. I went on say words to the effect of “I do not have the energy for this conversation now”. However, he persisted in an aggressive manner with a raised voice with a decidedly changed tone in his voice, then said words to the effect he “you need to provide a medical certificate if you are not in the office”. I responded by saying that “you’re making new rules Wayne and I do not need to provide a medical certificate as I am still working”, realising Mr Gibson voice was raised and appeared to be escalating and I then ended the call, not wanting to be spoken down to any further.
Realistically, there is very little difference in the two versions as to what was actually said; the only real divergence is whether the Applicant swore at Mr Gibson.
I do not have to decide this question, but I would add these observations. Firstly, the Applicant said that he would not have sworn at Mr Gibson because he doesn’t use those kinds of words. Yet, I had to admonish the Applicant twice, during the trial, for the use of audible obscenities.
What is also odd is that the Applicant, who has a penchant for recording phone calls, did not present a recording of this phone call. He said, in evidence before me, that he simply didn’t record this phone call. He then blamed his app for not working properly. The Applicant said to Mr Stegman, on 25 August 2023, about this phone call, “I am interested to see whether I’ve got a recording on my phone”.
It would be well within my purview to infer that the Applicant actually did have a recording of this phone call but has chosen not to disclose it because it would corroborate the version given by Mr Gibson. But I will not do this. This is because, as I have already pointed out, my task is not to discern whether or not the Applicant swore at Mr Gibson. This is a distraction from the task that I must perform.
The Investigation
As has been noted, the investigation was undertaken by Mr Craig Stegman, who is the managing director of the Respondent. He was the ultimate decision-maker.
As I have also noted, the investigation allowed the Applicant to make submissions to them. The investigation included what the Applicant said to Mr Stegman and Ms Cope at a meeting on 25 August 2023. The Applicant gave a written submission to the investigators on 29 August 2023.
Mr Stegman found that the complaint against the Applicant was substantiated. He said that this was because:-
·he considered Mr Gibson to be a truthful person, and it was unlikely that Mr Gibson had fabricated this allegation;
·Mr Gibson had made a “fresh complaint” and the physical reaction, that Mr Stegman witnessed, corroborated what Mr Gibson had said had occurred:
·the alleged conduct was consistent with the conduct and performance of the Applicant, specifically in relation to his physical attendance in the office, his attendance at work generally, his communication style and the inappropriate way he spoke to others, including his direct leaders;
·the Applicant had failed to comply with the requirement that he work in the office for at least two days per week following the written warning on 29 March 2023 and despite this value having been brought to the attention of the Applicant by Mr Gibson.
On 30 August 2023, a show cause letter was given to the Applicant. It gave him 24 hours to show cause as to why his employment should not be terminated. As previously noted, the time for the Applicant to show cause was extended.
The Third Matter – the Second Complaint through MyVoice
In his amended statement of claim, the Applicant said that he had a conversation with a senior HR manager on 12 September 2023. However, the Applicant gave no evidence of this event in any of his affidavits or his evidence before me. As such, there is no evidence that has been led to support this aspect of the statement of claim.
As previously mentioned, the Applicant made a second complaint through the MyVoice system on 14 September 2023. On this occasion, the complaint was one of retaliation. The complaint was detailed to a principal investigator at the BCO, Mr Stuart McNeice.
The complaint was that there was retaliation in response to an earlier MyVoice complaint and that Mr Gibson was falsely accusing the Applicant of swearing at him and that the Applicant had made complaints about Mr Gibson. The Applicant said that he believed that this was a targeted attempt at getting him fired.
The Applicant provided Mr McNeice with a number of documents which included the show cause letter which had been issued on 30 August 2023. Mr McNeice also interviewed the Applicant, via Teams, on 18 September 2023. This discussion went for about two hours. The Applicant complained that he had raised complaints about Mr Collopy and Mr Gibson. The Applicant said that every time he did raise these complaints, he felt like he was being disciplined.
Mr McNeice made it clear to the Applicant that he was not there to reconsider the previous complaint or to investigate the specific allegations against the Applicant in the show cause letter. Instead, Mr McNeice had to broadly examine whether the Applicant had made complaints and whether this was the reason for any detrimental treatment towards the Applicant.
The Applicant denied the allegations in the show cause notice as well as the basis upon which he was issued a written warning on 29 March 2023. He contended that both actions were in retaliation for making complaints.
Mr McNeice conducted his investigations but did not speak to either Mr Collopy or Mr Gibson. He said that is because those two employees were, in effect, respondents to the complaint made and the protocol is not to contact a respondent until it has been determined that the formal allegations should be put to them.
Mr McNeice came to the view that there was insufficient evidence to indicate that either the written warning letter, or the show cause letter, were issued to the Applicant for any reason other than legitimate performance or conduct concerns. Mr McNeice concluded that there was nothing that indicated that either Mr Collopy or Mr Gibson were retaliating against the Applicant making complaints.
On 3 October 2023, Mr McNeice contacted the Applicant by telephone and advised him that the complaint would be closed and that no further information will be taken in relation to it. Mr McNeice told the Applicant that he was not satisfied there was sufficient evidence to issue allegations of retaliation against either Mr Collopy or Mr Gibson.
The Applicant wished to speak to Mr McNeice following this advice, and a conversation occurred, by telephone, on 5 October 2023. Mr McNeice said that the Applicant had additional questions about the assessment of evidence and that he questioned whether an impartial decision-maker had reviewed those findings. Mr McNeice advised the Applicant that an impartial decision-maker only looks at the matter in the event that a formal report outlining investigation findings was issued and not in a matter such as this, which had not proceeded to formal allegations.
The Dismissal
The Applicant provided his submission in answer to the show cause letter on 14 September 2023 (which was the same day that he made the second MyVoice complaint). This was considered by Mr Stegman.
On 5 October 2023, the Applicant’s employment was terminated. His termination letter was in these terms:-
5 October 2023
Dear Brett,
Termination of Employment
On 30 August 2023, I met with you to formally notify you that Technology Resources Pty Ltd (‘the Company’) was considering terminating your employment after a factual investigation was undertaken into an incident that occurred on 22 August 2023, whereby you spoke disrespectfully to your leader when being reasonably asked why you had not attended the office for work. In addition, you have been performance managed by your leader since March 2023 regarding expectations including you communication style, behaviour and office attendance, which have not improved in line with Rio Tinto’s values and Rio Tinto’s Code of Conduct – The Way We Work.
The Company’s investigation into your alleged behaviours found that:
•You engaged in inappropriate behaviour towards your leader Wayne Gibson on 22 August 2023, including saying to your leader. “No I don’t, I’ve told you I’m not well and I’m still working, stop making stuff up, you can get fucked”.
•Your behaviours towards your leader were disrespectful when you were asked why you weren’t present in the office;
•You have engaged in repeated inappropriate behaviours, lack of communication and understanding of requirements of an employee/leader relationship;
•Your behaviours are not aligned with our values and the commitments of the Everyday Respect Report;
•You have continually been unable to recognise inappropriate behaviours and communication, even after being provided with leader coaching, reasonable instructions, constructive feedback as well as a written warning outlining the clear expectations required to be met.
In addition, you have failed to meet the Company’s expectations that were outline in the Written Warning dated 29 March 2023, specifically:
•Arranging suitable work office days amidst being given reasonable opportunities and timeframes to do so form 27 March 2023.
•Understanding the requirements of correctly notifying your leader when sick or when you aren’t going to be present in the office due to being sick.
•Ensuring your conduct (verbal and non-verbal) is always professional and in line with Rio Tinto’s values.
•Approach all conversations, in a professional manner.
•Be aware of the effect your behaviour and comments may have on others and ensure comments and behaviour are appropriate to all situations.
•Conduct yourself in accordance with our expected values and behaviours as The Way We Work.
•You are expected to adhere to reasonable management action, which is justified feedback carried out in a reasonable manner. This includes responding to emails and requests from your leader in a timely and appropriate manner; Taking direction from your leader on tasks and work requests/stop work requests/change of work requests; and other reasonable requests.
•As a team member, you are expected to seek clarity on direction from your leader when you either don't understand the direction or believe there is a better approach and to engage in two-way communication to resolve this and to support any final decisions made by your 1eader.
In my letter you were invited to show cause as to why your employment should not be terminated. This meeting was held with you on 30 August 2023 for this purpose, which you attended without a support person present.
After the show cause meeting you asked that the Company consider additional context that you provided through emails.
As set out in my letter, your behaviour as outlined above, is in breach of the below policies:
Ria Tinto's Code of Conduct - The Way We Work, in particular
3.) Our values - Care We act with care by prioritising the physical and emotional safety and wellbeing of those around us. We respect others, build trusting relationships and consider the impact of our actions. We look for ways to contribute to a better future for our people, communities and the planet
4.) Making ethical decisions
•Living our values of Care, Courage and Curiosity in every decision we make
•Pause and reflect/ Respect Views / Consider Options / Test Understanding / Be Decisive
6.) b) Equity, diversity and inclusion
•Treat others equally and with kindness
•Recognise my own biases and how these may impact others, reflecting on my behaviours to ensure my actions contribute to a respectful and inclusive environment.
After careful, consideration of all of the facts and circumstances, the Company has decided that your employment is to terminate effective today, Thursday 5^th October 2023. Please ensure that all Rio Tinto equipment and devices you currently obtain are handed in and coordinated with your relevant leader or MOR.
The Company will not require you to work your notice period. You will receive payment in lieu of five weeks contractual notice and payment for any accrued and unused leave that you may be entitled to. These payments will be paid into your normal bank account You will receive a payslip setting out those payments.
Free and confidential counselling will remain available to you and your immediate family members through the Company's Employee Assistance Program (EAP) provider for a further 5 weeks from today. The telephone number for the EAP Provider, BSS is 1800 30 30 90.
If you have any questions regarding this letter, please contact me on
Yours Faithfully
Craig Stegman
Managing Director
Group Technical.
This Application
The issue for the Court (in assessing whether there has been a contravention of s 340 of the FW Act) is to firstly decide whether the Applicant exercised workplace rights and then whether there is a link between the exercise of those rights and the adverse action. If the Applicant has satisfied the Court of those matters, then it is for the Respondent to prove to the Court that the adverse action was not taken for a prohibited reason.
I should add that the Applicant did not seem to appreciate the role of the Court. Despite many assurances from the Applicant that “he knew what he was doing”, it seemed that he believed this trial was about him proving that the witnesses for the Respondent “had it in for him”. He also proceeded on a footing that the Respondent had to prove that the termination was justified. As I said to the Applicant, even if the termination is unfair, that doesn’t mean that s 340 of the FW Act has been contravened.
Temporary absence because of illness
The Applicant had alleged that there was also a contravention of s 352 of the FW Act. That section prohibits an employer from dismissing an employee because the employee is temporarily absent from work because of illness. As I indicated during the course of submissions, I am not of the view that this claim has been made out.
It is for the Applicant to prove to me that he was absent because of illness. He has produced no evidence that he was ill at the times for which he was absent. There is no one who saw the Applicant on those days who could corroborate that he was ill.
But, more importantly, the evidence was consistent from the witnesses for the Respondent, and this was not challenged in any way, shape or form by the Applicant. That evidence was that the Respondent had no problems with the Applicant being absent if he were ill. The problem for the Respondent was that the Applicant did not inform the Respondent that he was ill.
The Applicant was told that this was a requirement of the Respondent. He was told this by Mr Collopy on 11 July 2022. He was told this repeatedly by Ms Brown. He was told this by others as well, including Mr Gibson. All that the Respondent required was notification from the Applicant.
The termination letter makes clear that the Applicant was not dismissed because he was temporarily absent from work because of illness. There is nothing to suggest that there is any link between the Applicant being absent, because of illness, and the dismissal.
To my mind, this claim does not even reach the point where the Respondent must deal with the engagement of s 361 of the FW Act.
Complaints
It is trite to say that any employee has a workplace right to make a complaint, or enquiry, regarding their employment. As has earlier been noted, in the statement of claim, the Applicant particularised 13 complaints that he had made. The Court has to decide whether they are, in fact, complaints.
With regards to the first four complaints (which were particularised in the amended statement of claim), the Applicant led no evidence of these four incidents. None of them appear in his affidavits and he gave no evidence of them when he was in the witness box. The Respondent did not cross-examine him on any of those four matters.
The Applicant did make a complaint about Mr Collopy’s leadership style in the meeting of 27 October 2022. I find that this was an exercise of a workplace right.
The Applicant did make a complaint about Mr Collopy’s management to Ms Brown in the Teams phone call on 6 December 2022. I find that this was an exercise of a workplace right.
On 9 March 2023, the Applicant wrote an email declining the meeting invitation sent by Mr Gibson. This can be seen as constituting a complaint. However, the manner in which this was communicated was disrespectful.
Whilst I do not have to do decide whether this particular issue applies in this matter, I note that if a complaint is made in a disrespectful or discourteous manner, such that it breaches a code of conduct of an employer, the employee may suffer adverse action because of this only if the adverse action relates to the manner in which the complaint is made, and not for the making of the complaint itself.
Nevertheless, I find that, in writing the email on 9 March 2023, the Applicant was making a complaint and therefore exercising a workplace right.
The Applicant claims to have exercised the workplace right by writing a Teams message to Mr Gibson on 14 March 2023 where he purports that he is sick and will be taking the rest of the day off. This is not a complaint about employment. This is a notification to an employer. It does not fit within the definition of workplace right in s 341 of the FW Act. Therefore, I do not find that this communication was the exercise of a workplace right.
On 30 March 2023, the Applicant used the MyVoice system to make a complaint. I find that this was an exercise of a workplace right.
The Applicant claims to have exercised a workplace right on 22 August 2023 when he decided not to physically attend work because he was not feeling well. This is not a complaint and does not fit the definition of “workplace right”. I do not find that this was the exercise of a workplace right.
On 25 August 2023, when asked to comment on the investigation into his own behaviour, the Applicant made complaints about Mr Gibson. I find that this was the exercise of workplace right.
On 14 September 2023, the Applicant used the MyVoice system to make a complaint. I find that this was the exercise of a workplace right.
On 14 September 2023, in giving his response to the show cause letter, the Applicant made a complaint about Mr Gibson and Mr Collopy. I find that this was the exercise of workplace right.
I do note what the Respondent has submitted regarding the bona fides of many of those complaints. The two MyVoice complaints occur immediately after the issuing of a warning letter and a show cause letter. The Respondent argues that the timing of these complaints shows that they are not genuine complaints but rather are designed to distract from the issue that is well and truly present, which is the conduct and performance of the Applicant.
It seems to me that such argument by the Respondent may be apposite to nearly all of the complaints as it could be argued that the Applicant was attempting to move the focus away from his own behaviour to that of other people.

Notwithstanding those submissions, which do have some force, on balance, I am not persuaded that I could categorise the complaints (which I deemed to have been the exercise of a workplace right) as not being genuine.
This means that I am satisfied that the Applicant exercised a workplace right on seven occasions.
Adverse action and Reversal of onus
The only adverse action that has been pleaded is that of termination of employment on 5 October 2023. As I have said earlier, the other aspects mentioned in the statement of claim, did not constitute “adverse action”.
There is a sufficient link between the exercise of these workplace rights and the adverse action, such that s 361 of the FW Act applies to reverse the onus such that it is for the Respondent to prove to the Court, on the balance of probabilities, that the adverse action taken against the Applicant was not done for a prohibited reason.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, the High Court (French CJ and Crennan J) said:
[42] Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker's "particular reason" for taking adverse action (s 361(1)), and consideration of the employee's position as an officer or member of an industrial association and engagement in industrial activity ("union position and activity") at the time the adverse action was taken (ss 342, 346(a), 346(b), 347 and 361(1)).
[43] Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. The majority in the Full Court correctly rejected an argument put by the Respondents that the introduction of the statutory expression "because" into a legislative predecessor to s 346, in place of the previous statutory expression "by reason of", rendered irrelevant the state of mind of the decision-maker.
[44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.”
Has the Respondent discharged their onus?
In this case, the Applicant has claimed that he was dismissed because of the making of these complaints against Mr Collopy and Mr Gibson.
What is clear on the evidence is that neither Mr Collopy, nor Mr Gibson, had any role to play in the decision to terminate the Applicant. The whole of the responsibility for that decision rests upon the shoulders of Mr Stegman. He said that there was a recommendation, for that decision, from the HR department, but that he had made the decision because of the reasons expressed in the termination letter.
The Applicant argued that the decision was one in which Mr Stegman was consciously, or subconsciously, influenced by Mr Gibson, Mr Collopy, Ms Brown, Ms Taylor and Mr McNiece. He cites Wong v National Australia Bank [2022] FCAFC 155 as authority for that submission.
In that matter, the ultimate decision-maker was influenced by the direct supervisor of that applicant such that there should have been an examination of the state of mind of that direct supervisor.
I presided over a similar matter in Queensland Nurses Union v Australian Red Cross Society Pty Ltd and ors [2016] FCCA 2320, where the decision of the ultimate decision-maker was tainted by the information (and lack of information) given by the supervisors of the affected employee. In that matter, I did examine the state of mind of those supervisors and made my decision accordingly.
Those two cases are factually quite different to the present case. In those two cases, the evidence was that the decision-maker relied upon the information given by other persons to make their decision. In those cases, it could not be truly said that the ultimate decision-maker was the sole decision-maker.
In this case, the decision-maker used his own experience together with the myriad documents where the Applicant had communicated with other people. Whilst the decision-maker had the benefit of a strong recommendation from HR, nevertheless it was his decision, and his decision alone, to terminate the employment of the Applicant.
Mr Stegman impressed me as a witness, and I do accept his evidence. I asked questions of Mr Stegman myself, because the Applicant had neglected to put them to the witness. His answers to these two questions are very instructive. The exchange was as follows:-
His Honour – what do you say to the suggestion that what you say are the reasons you terminated his employment are not correct. What do you say to that?
Craig Stegman – um, I believe they were correct.
His Honour – okay. What do you say to this suggestion – that the real reasons that you terminated his employment is that he was just making constant complaints about people that you like, Mr Gibson and Mr Collopy?
Craig Stegman – I deal with lots of people who don’t work well with each other. And so my job is to take advice from the HR team to make sure that I don’t get emotionally involved in this. Yes, I was a friend with all three of these people, still am a friend. But at the end of the day my job is to work out what’s, what make sense here. From what I could see, I could see a range of performance issues that stretch back to, you know, a couple of years. I could see he hadn’t complied with his performance improvement plan. Ah, I was particularly worried that at no point did Mr Ustick acknowledge that there might be issues on his side, in terms of his ability, the way he was communicating, the way he was talking to people. Ah, the fact that he did not offer me a reason for not coming into the office even though that was a directive. And so, ah, when I looked through all of this, I looked at it and said I, I believe that there is a significant performance issue here. Ah, I was aware of some of the issues but I’d also, ah, was relying on the independent investigation processes, with the business conduct office for example, to test the validity of those issues and I was completely independent of those issues.
Consistent with what was said by the High Court in Barclay (Supra), I accept the evidence of Mr Stegman. Having come to that conclusion, I find the Respondent has discharged their onus.
Conclusion and orders
I am satisfied that the Respondent did not dismiss the Applicant because he made complaints on seven occasions.
I dismiss the application. I decline to make any order for costs.

I certify that the preceding two hundred and twenty-two (222) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.
Associate:
Dated: 20 November 2024

File number(s):	BRG 622 of 2023
Judgment of:	JUDGE VASTA
Date of judgment:	20 November 2024
Catchwords:	INDUSTRIAL LAW – Termination of employment – whether applicant made complaint – whether applicant terminated because he was absent while ill – where respondent discharged onus
Legislation:	Fair Work Act 2009 (Cth), ss 340,341, 352, 361
Cases cited:	Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Queensland Nurses Union v Australian Red Cross Society Pty Ltd and ors [2016] FCCA 2320 Wong v National Australia Bank [2022] FCAFC 155
Division:	Division 2 General Federal Law
Number of paragraphs:	222
Date of last submission/s:	13 November 2024
Date of hearing:	11,12 and 13 November 2024
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf
Counsel for the Respondent:	Ms Brooks
Solicitor for the Respondent:	Minter Ellison

BRG 622 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BRETT USTICK Applicant
AND:	TECHNOLOGICAL RESOURCES PTY LTD (RIO TINTO) Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	20 NOVEMBER 2024