Warwick Crebert v Mt Arthur Coal Pty Limited

[2017] FWC 3101

[2017] FWC 3101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Warwick Crebert
v
Mt Arthur Coal Pty Limited
(U2017/1997)

COMMISSIONER SAUNDERS NEWCASTLE, 22 JUNE 2017

Application for an unfair dismissal remedy – valid reason – dismissal not harsh, unjust or unreasonable

[1] Mr Warwick Crebert, an Open Cut Examiner employed by Mt Arthur Coal Pty Ltd (Mt Arthur), was dismissed (with eight weeks’ pay in lieu of notice) on 10 February 2017. Mr Crebert’s dismissal was triggered by events which took place during pre-start meetings on the morning of Saturday, 28 January 2017 and Sunday, 29 January 2017. Mt Arthur contends that Mr Crebert’s conduct at, and in connection with, those pre-start meetings contravened its policies and procedures, including the BHP Billiton Code of Business Conduct (Code) and the BHP Charter Values (Charter). Mr Crebert denies those allegations and contends that his dismissal was harsh, unjust and unreasonable.

[2] Mr Crebert gave evidence in support of his claim, as did Mr Paul Crouch, Operator at Mt Arthur, Mr Heath Hardman, Operator at Mt Arthur, Mr James Urquhart, Statutory Compliance and Standards Supervisor at Mt Arthur, and Mr Jeff Drayton, Vice President of the CFMEU, Mining & Energy Division, Northern Mining & NSW Energy District. Mr Shaun McKenzie, Manager – Employee Relations at BHP Billiton, was called by Mr Crebert to give evidence pursuant to an order under s.590(2) of the Fair Work Act 2009 (Cth) (Act). Mt Arthur adduced evidence from Mr Blair Whitney, Superintendent Coal Mining at Mt Arthur, and Ms Tracy Hennig, Manager Production Coal at Mt Arthur.

Initial matters to be considered

[3] I am required by s.396 of the Act to decide four matters before I consider the merits of Mr Crebert’s application. There is no dispute between the parties and I am satisfied on the evidence that:

(a) Mr Crebert’s application was made within the period required by s.394(2) of the Act;

(b) Mr Crebert was a person protected from unfair dismissal;

(c) Mt Arthur was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) Mr Crebert’s dismissal was not a case of genuine redundancy.

Was Mr Crebert’s dismissal unfair?

[4] I am required by s.387 of the Act to take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Crebert’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Mr Crebert’s dismissal (s.387(a))?

[5] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[6] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵

[7] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.⁶ It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7

[8] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 8as follows:

"[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal."

[9] Mt Arthur relies on Mr Crebert’s conduct in connection with the pre-start meetings on 28 and 29 January 2017 to support its argument that it had “valid reasons” for Mr Crebert’s dismissal. In essence, Mt Arthur’s reasons for dismissal may be conveniently summarised and categorised into the following four reasons:

(a) First, Mr Crebert failed to comply with the express direction given to him by Mr Whitney to discuss the requirements of the Charter and the Code with the crew of employees he supervised (B crew) on 28 January 2017, and instead made a number of statements in that pre-start meeting to his crew that were inconsistent with the Charter and the Code;

(b) Secondly, Mr Crebert allowed Mr Crouch to address B crew at the pre-start meeting on 29 January 2017 about an incident in which one employee in the crew had allegedly “dobbed in” another employee for sleeping on the job at 9am in the morning;

(c) Thirdly, Mr Crebert failed to properly address Mr Crouch’s conduct during the pre-start meeting on 29 January 2017; and

(d) Fourthly, Mr Crebert spoke to Mr Figallo, the employee who had allegedly “dobbed in” another employee, on 29 January 2017, and in doing so breached the Charter and Code.

The Charter and Code

[10] The Charter sets out Mt Arthur’s behavioural expectations of its employees. The Code is based on the Charter, and provides guidance as to how employees can display Charter values in their day to day conduct. It is not intended to be an exhaustive rulebook for employees, but does reinforce the expected standards of behaviour for employees.

[11] There is no dispute between the parties and I am satisfied on the evidence that Mr Crebert was aware of, and trained in, the Charter and Code.

[12] The Charter includes the following “values”:

● “Integrity – doing what is right and doing what we say we will do”;

● “Respect – embracing openness, trust, teamwork, diversity and relationships that are mutually beneficial”; and

● “Accountability – defining and accepting responsibility and delivering on our commitments”.

[13] The “message from the CEO” at the commencement of the Code includes the following statements:

● “It [the Code] is a powerful document that brings to life Our Charter values and will help you maintain trust and build strong relationships with our communities, governments, suppliers, business partners, customers and your team.”

● “As you go about resourcing the future, please remember your shared responsibility to consistently apply the Code of Business Conduct. Also speak up and step up if you see a potential breach or if there is an opportunity for us to improve how we behave.” [emphasis added]

[14] The Code sets out expectations of all employees and supervisors, including the following:

“Our expectations of you

When working for BHP Billiton you agree to uphold Our Charter values, the Code and the relevant GLDs [Group Level Documents], standards and procedures that apply to your work…

It is critical you understand the Code and how it applies to you. You should:

…

- raise all questions and concerns immediately;

- never encourage, allow or personally demonstrate retaliation for someone raising a concern;

- never ignore a breach or potential breach of the Code…

Our expectations of those who supervise

If you are a supervisor or manager you have an additional duty of care to understand your responsibilities in dealing with Code of Business Conduct concerns. Those who supervise others should also:

- Consistently demonstrate exemplary behaviour.

- Foster an inclusive culture where employees understand their responsibilities, feel comfortable and supported to raise concerns without fear of retaliation.

- Encourage and reward employees for demonstrating Our Charter values.

…

- Never ignore or dismiss a concern raised.” [emphasis added]

First reason

[15] In the weeks leading up to 27 January 2017, Mr Crebert noticed that the crew he supervised appeared to be in a state of “unrest”. One Operator informed Mr Crebert of a rumour that was being spread amongst the crew that Mr Crebert had targets out to “get” particular crew members. Mr Crebert says the rumour was untrue. Mr Crebert was also informed by one of his crew members that particular employees in the crew had been expressing their dissatisfaction about not receiving training on different pieces of equipment, and they felt as though there was a lack of skills utilisation.

[16] Mr Crebert reported directly to Mr Whitney, who in turn reported to Ms Hennig.

[17] In January 2017, Mr Whitney received reports that there had been several incidents at Mr Crebert’s pre-start meetings in January 2017 involving Operators swearing at, and disrespecting, Mr Crebert.

[18] There is no dispute between the parties and I am satisfied on the evidence that on 27 January 2017 Mr Whitney directed Mr Crebert to remind his team at the next pre-start meeting of their responsibilities under both the Charter and Code. There is a dispute on the evidence between Mr Whitney and Mr Crebert as to whether Mr Whitney also said to Mr Crebert in this discussion that Mr Crebert was required to “display the Charter values in the manner in which you conduct yourself at tomorrow morning’s pre-start meetings”. However, I do not need to resolve this dispute because there is no doubt that Mr Crebert was required to act consistently at all times with the Charter values when carrying out his duties and responsibilities as an Open Cut Examiner at the Mt Arthur mine.

[19] Mr Crebert conducted the pre-start meeting for members of B crew at about 6:30am on Saturday, 28 January 2017. Mr Crebert opened the meeting by saying words to the following effect:

“I’ve called this meeting to discuss the rumours, the issue regarding the lack of training, and a rumour that I have a set against particular crew members.”

[20] Mr Crebert accepts that he did not remind his crew at the pre-start meeting on 28 January 2017 of their obligations under the Code and Charter, but he did make the following statements, amongst others, during that meeting:

(a) “People need to look after themselves”;

(b) “I don’t need to have people coming to me and explaining about what other people do”; and

(c) “Stop the carrying on with rumours and whingeing.”

[21] Mr Crebert gave the following explanation for these statements in his witness statement:

“25. I made this comment [about not needing to have people coming to me and explaining what other people do] to highlight that I was aware of many of the incidents of complaints brought to me by the crew. The issues were general issues amongst the coal teams and they were being addressed and monitored by the management staff.

26. I also explained that I had heard rumours in relation to crew members being disgruntled with the lack of training and skill utilisation. I had attempted to address the crew’s concerns in preceding pre-start meetings, but was unable to conclude in the 10 minute meetings prior. I addressed the issue regarding the reports I was receiving from crew members around rumours and discussions with other crew members. I clearly highlighted that if staff members were concerned about other crew members or issues on site, they were to come to me personally. Rumours, bickering, and whingeing in the crib rooms needed to stop.

27. In relation to the previous comments at some stage during the pre-start meeting I said words to the effect of:-

‘Stop the carrying on with rumours and whingeing.’

28. I also said words to the effect of:-

‘If people have any issues on site, they need to come to me as I can tell them the information or find out the information for them.’

29. The reference I made to ‘whingeing’ was a reference to crew members complaining amongst themselves in crib rooms about the lack of training and skill utilisation. Approximately three (3) or four (4) employees spoke up against whingeing. The reports I had received from some of the operators was that a small number of operators were whingeing during crib breaks and they were sick of hearing the whingeing.”

[22] On face value some of the comments made by Mr Crebert during the pre-start meeting on 28 January 2017 (set out in paragraph [20] above) may be interpreted as being inconsistent with the Charter and Code, particularly insofar as they impose obligations on employees and supervisors to foster an inclusive and open culture in which employees are encouraged to raise any concerns without fear of retaliation. However, I accept the explanation given by Mr Crebert for making these statements, as set out in the previous paragraph, including the fact that Mr Crebert told members of his crew that they were to “come to me personally”. When Mr Crebert statements are considered in context, it is clear, in my view, that he was not discouraging employees from raising their concerns, but was rather informing the employees that they should raise their concerns with him personally instead of creating rumours or whingeing amongst themselves. In the circumstances, I find that Mr Crebert did not breach his obligations under the Code or Charter by making the statements set out in paragraph [20] above to members of his crew in the pre-start meeting on 28 January 2017. His conduct in making those statements did not constitute a valid reason for his dismissal.

[23] Mr Crebert accepts, however, that he failed to comply with the direction given to him by Mr Whitney on the previous day to remind his crew at the pre-start meeting on 28 January 2017 of their obligations under the Code and Charter. That was clearly a lawful and reasonable direction.

[24] Mr Crebert says that although the pre-start meeting on 28 January 2017 lasted for approximately 45 minutes, he did not specifically raise the Code or Charter during the meeting “as we were discussing other matters for longer than I expected. I made a decision to raise the Code of Conduct in subsequent pre-start meetings of the following shifts”. Mr Crebert also accepts that he did not raise the Code or the Charter at the pre-start meeting on Sunday, 29 January 2017.

Second reason

[25] Mr Crebert gave evidence, which I accept, that Mr Crouch, an Operator on B crew, approached Mr Crebert shortly before the commencement of the pre-start meeting on 29 January 2017 and said words to the following effect:

“I’ve been told that Dave Figallo called up dispatch yesterday and dobbed in another operator who was asleep on shift. I want to raise this during the pre-start meeting again given you only spoke about this in yesterday’s meeting…

I want to get up and have a speech about it but I’m not going to pin him and I’m not going to mention him, I just want to address the crew about it generally.”

[26] Mr Crebert responded to Mr Crouch by saying to him words to the following effect:

“Okay but I don’t want you to cause a screaming match with anyone.”

[27] Mr Crouch then addressed the members of B crew in the pre-start meeting. Mr Crouch gave evidence that he said words to the following effect at the meeting:

“After yesterday’s pre-start meeting it’s pretty disappointing to hear that on the same shift people are ringing up dispatch on their own private mobile number to report other workers sleeping. It’s got to stop. It’s just bullshit. If you don’t want to be a part of the work group then try and get on to another crew. We don’t need this in this room. Really if you don’t want to be here, just fuck off to another crew.

Has anyone got any problems or questions about what I have raised? If you do, you can piss off to another crew, otherwise let’s all get along.”

[28] Mr Crouch also accepted in cross examination that he said during his speech to the members of B crew at the pre-start meeting on 29 January 2017 that “he would catch up with that person” [who had reported the worker sleeping].

[29] Mt Arthur contends that Mr Crouch referred to Mr Figallo as a “fucking dog” during his speech to the members of B crew at the pre-start meeting on 29 January 2017. The basis for that contention is information Mr Figallo provided to Mr Whitney about what was said by Mr Crouch at the meeting. Mr Whitney did not attend the pre-start meeting on 29 January 2017. Mt Arthur did not call Mr Figallo to give evidence in the proceedings. The only witnesses in the proceedings who attended the pre-start meeting on 29 January 2017 were Mr Crouch and Mr Crebert. Mr Crouch denies saying the words “fucking dog” and says he is a proud owner of dogs and would not have referred to Mr Figallo as a dog. Mr Crebert gave evidence that he did not hear Mr Crouch use the words “fucking dog” in the meeting, but he does recall that Mr Crouch made reference to “catching up with the Operator who had rung dispatch”.

[30] In light of the evidence given by Mr Crebert and Mr Crouch in relation to this issue, together with the fact that neither Mr Figallo nor any other person that attended the meeting was called as a witness in the proceedings, I find, on the balance of probabilities, that Mr Crouch did not say the words “fucking dog” when he addressed the members of B crew at the pre-start meeting on 29 January 2017. I am satisfied that Mr Crouch said words to the effect of those set out in paragraphs [27] and [28] above when he addressed the members of B crew at that meeting.

[31] Prior to giving Mr Crouch permission to address the members of B crew at the pre-start meeting on 29 January 2017, Mr Crebert did not speak to Mr Figallo or anyone from the Dispatch team to inquire into whether Mr Figallo had reported a sleeping worker or, if he had, why he had made such a report. So far as Mr Crouch and Mr Crebert were aware at that time, the report of Mr Figallo “dobbing in” an operator to Dispatch was no more than a rumour.

[32] Mr Crouch admitted in cross examination that he used a stern tone when he addressed the members of B crew at the pre-start meeting on 29 January 2017. I do not consider the fact that Mr Crouch used a swear word when addressing the meeting in a workplace such as a coal mine to be significant.

[33] However, the language which Mr Crouch admits to using when he addressed B crew was, in my view, both aggressive and threatening. Further, Mr Crouch’s conduct in addressing B crew in that way clearly contravened the Charter and Code, including the requirements relating to:

● Respect – embracing openness, trust, teamwork;

● Never encourage, allow or personally demonstrate retaliation for someone raising a concern; and

● Integrity – doing what is right.

[34] I am also satisfied that Mr Crebert contravened his obligations under the Charter and Code by permitting Mr Crouch to address the members of B crew in this way, particularly in circumstances where Mr Crebert knew that Mr Crouch wanted to give a speech about one of the crew members “dobbing in” an operator who was asleep at work and Mr Crebert had not made any inquiries about whether Mr Figallo had made such a report to Dispatch or why he may have done so. It must be kept in mind that an Operator sleeping at a coal mine at 9am in the morning when they should be undertaking work is a safety risk that must be managed. By authorising Mr Crouch to make such a speech, Mr Crebert contravened the Charter and Code, including the requirements relating to:

● Respect – embracing openness, trust, teamwork;

● Never encourage, allow or personally demonstrate retaliation for someone raising a concern;

● Integrity – doing what is right;

● Accountability – defining and accepting responsibility and delivering on our commitments;

● Foster an inclusive culture where employees understand their responsibilities, feel comfortable and supported to raise concerns without fear of retaliation; and

● Encourage and reward employees for demonstrating Our Charter values.

[35] Mr Crebert’s conduct in this regard constitutes a clear and patent breach of Mt Arthur’s policies.

Third reason

[36] At no time during Mr Crouch’s speech to the 30 odd members of B crew at the commencement of the pre-start meeting on 29 January 2017 did Mr Crebert step in and stop Mr Crouch from speaking. Further, after Mr Crouch had addressed the meeting Mr Crebert did not say anything when he addressed the meeting about Mr Crouch’s message or the matters Mr Crouch spoke about. By failing to act, Mr Crebert condoned Mr Crouch’s conduct and again breached the Code and Charter, particularly the obligations set out in paragraph [34] above.

[37] After the conclusion of the pre-start meeting Mr Crebert spoke to Mr Crouch and said to him words to the following effect:

“Don’t approach Fig [Mr Figallo]. I will do that. I don’t want a blow up between you and Fig. I will get back to you about it.”

[38] It was appropriate for Mr Crebert to instruct Mr Crouch not to approach Mr Figallo about the matter. However, Mr Crebert should have also pointed out to Mr Crouch that his speech to the members of B crew was inappropriate and in breach of the Code and Charter.

Fourth reason

[39] At about 10am January 2017, Mr Crebert and Mr Figallo had a conversation in words to the following effect:

Mr Crebert: “What’s going on Fig? Why would you call Dispatch and tell them that someone is sleeping instead of calling me?”

Mr Figallo: “I thought I was doing Dispatch a favour.”

Mr Crebert: “You should have reported this to me as I’m your OCE. This needs to stop because everyone gets upset and I have to deal with it. Is your backyard clean? You worry about your own backyard.

You need to look after yourself before you do these things.”

Mr Figallo: “Yep that’s alright.”

[40] Mr Crebert gave the following explanation in his witness statement about his comments to Mr Figallo about this incident:

● Mr Crebert believes that Mr Figallo should have reported the incident to him because he was Mr Figallo’s supervisor at the time. Mr Crebert is of the view that if Mr Figallo had raised the issue of an Operator sleeping on shift, he would have been able to deal with the issue then there would not have been complaints from other crew members about Mr Figallo contacting Dispatch;

● in referring to everyone getting upset and Mr Crebert having to deal with it, Mr Crebert was referring to Mr Crouch’s address that he made during the pre-start meeting on 29 January 2017; and

● Mr Crebert’s reference to Mr Figallo’s “backyard” and the need to look after himself was in reference to Mr Figallo’s conduct on night shift and in wet conditions, particularly issues Mr Crebert says he previously had attempting to locate Mr Figallo on night shift in wet conditions.

[41] The context in which Mr Figallo reported the incident of the sleeping Operator to Dispatch is important. Mr Whitney gave evidence, which I accept, that Mr Figallo told him that on 27 January 2017 Dispatch sent him to locate two Operators who had not been responding to radio calls, Mr Figallo found one of the Operators asleep in the fatigue hut, Mr Figallo called “Dane” from Dispatch to let him know but he was not available, so Mr Figallo arranged for Dispatch to call him on his mobile phone, which they did, and Mr Figallo was concerned that the Operator may be fatigued at the beginning of his shift in which he was supposed to be driving a truck all day, which could put himself and others in danger. 9 Mr Whitney contacted Dispatch after being provided with this information from Mr Figallo and Dispatch confirmed to Mr Whitney that they had asked Mr Figallo to locate the two Operators and Mr Figallo had contacted them after he found the Operator asleep.

[42] Mr Crebert submits that I should not find that Dispatch asked Mr Figallo to locate the two Operators because Mr Figallo was not called to give evidence, there is a “history” between Mr Crebert and Mr Figallo including Mr Figallo’s history of spreading rumours at the mine, and the fact that Mr Figallo reported the sleeping Operator on his mobile phone, rather than on the two-way radio, suggests that Mr Figallo was trying to hide from Mr Crebert the fact that he was reporting the sleeping Operator to Dispatch. I do not accept this submission, and instead find that Mr Figallo reported the sleeping co-worker to Dispatch because Dispatch requested Mr Figallo to locate the two Operators, for the following reasons:

(a) First, the fact that Mr Figallo was not called to give evidence is not, of itself, a sufficient reason to find that Dispatch did not ask Mr Figallo to locate the two Operators. Although Mr Figallo’s discussions with Mr Whitney are hearsay, Mr Whitney’s recollection of those discussions is supported by a contemporaneous file note and a text message communication from Mr Figallo, both of which are business records within the meaning of the Evidence Act; 10

(b) Secondly, Mr Whitney, who I found to be a witness of credit, gave evidence that he made independent inquiries with Dispatch to check the veracity of Mr Figallo’s version of events. Dispatch confirmed to Mr Whitney the version of events given by Mr Figallo;

(c) Thirdly, no direct evidence was adduced by or on behalf of Mr Crebert to challenge the matters Mr Figallo explained to Mr Whitney, as set out in paragraph [41] above;

(d) Fourthly, the evidence of a “history” between Mr Crebert and Mr Figallo was not extensive. Although Mr Figallo may not like Mr Crebert, I am not persuaded on the evidence that Mr Figallo reported the sleeping co-worker to Dispatch rather than Mr Crebert as a result of some animosity or “history” between Mr Figallo and Mr Crebert; and

(e) Fifthly, I do not regard the fact that Mr Figallo says he tried to contact “Dane” from Dispatch to let him know that he had located one of the Operators (who was sleeping) but he was not available, so Mr Figallo arranged for Dispatch to call him on his mobile phone, which they did, to be suspicious or suggestive that Mr Figallo was trying to hide something from Mr Crebert. The evidence demonstrates that two-way radio channels at Mt Arthur’s coal mine can be very busy on some occasions and that may well have been the reason why Mr Figallo arranged for Dispatch to call him back on his mobile phone.

[43] I agree with Mr Whitney’s assessment 11 that Mr Figallo’s decision to call Dispatch to inform them that his co-worker had been sleeping was an entirely appropriate course of action, particularly given the fact that Dispatch had actually asked Mr Figallo to locate the co-worker in question. I make that finding notwithstanding the terms of Mt Arthur’s Fatigue Management Procedure, which applies to all employees and contractors at the mine and includes the following provisions:

“1 Intent

This procedure provides a framework for all personnel and all contractors at all levels of the organisation for the prevention and management of fatigue related risks in accordance with the requirements of the Coal Mine Health and Safety Act 2002 and Mt Arthur Coal’s Mind Safety Management Plan…

5 Roles and Responsibilities

…

All employees will:

…

● Identify, monitor and report fatigue related issues …

7 Education

…

7.1 Managing fatigue issues at work

In the event of an employee or contractor presenting for work with a level of fatigue which could be considered a risk to their own or other persons safety, or becoming fatigued at work to a level that she could be considered a risk to their own or other persons safety, then the following procedure should be considered.

7.2 Reporting Fatigue

All employees are encouraged to make any fatigue risk situations in themselves or others known to their immediate supervisor or to their representative as soon as they become aware of the risk. This should be treated in a similar way to the identification of risk from any other cause but with suitable discretion particularly if reporting concerns about another person…”

[44] Section 5 of the Fatigue Management Procedure does not identify the person(s) to whom an employee must report a fatigue related issue. Section 7.2 “encourages” an employee to “make any fatigue risk situations in themselves or others known to their immediate supervisor or to their representative”, but does not impose a mandatory requirement in that regard. I am satisfied that Mr Figallo acted in accordance with the framework provided for in the Fatigue Management Procedure and his obligations under that procedure when he reported the fatigue related risk of an Operator sleeping at 9am in the morning to Dispatch after being requested by Dispatch to locate the Operators. It was, in my view, reasonable for Mr Figallo to assume that Dispatch, which is responsible for assisting to organise and communicate arrangements concerning the use and deployment of labour and equipment at the mine, would address in an appropriate way the risk created by the Operator being asleep at work, possibly including by making relevant supervisors aware of the matter.

[45] Similarly, I am satisfied that by doing as he was asked and informing Dispatch of the location of the sleeping co-worker Mr Figallo complied with his obligations under the Code to “promptly report any circumstances that represent a threat to your safety or the safety of others”. 12 The Code refers an employee to where they may go for help, including to a “supervisor or manager”, but does not impose an obligation on an employee to report a safety issue to a particular person or position.

[46] Mr Crebert should have obtained further information concerning why Mr Figallo reported the sleeping co-worker to Dispatch before chastising him for doing so. Further, I am satisfied that the comments Mr Crebert made to Mr Figallo about worrying about his own backyard and keeping it clean, “this needs to stop”, and looking after himself before “you do these things”, as set out in paragraph [39] above, were inappropriate and in breach of the Charter and Code, including Respect – embracing openness, and fostering an inclusive culture where employees feel comfortable and supported to raise concerns without fear of retaliation. A reasonable person in the position of Mr Figallo would, in my opinion, interpret such words as a warning that Mr Figallo should not in the future speak up to anyone other than Mr Crebert about any concerns he had, including in relation to safety related matters. A message of that kind is antithetical to the culture Mt Arthur is trying to foster, whereby employees are encouraged to speak up without fear of punishment, disciplinary or retaliatory action being taken against them for doing so. 13 A culture of that kind is very important in an inherently dangerous industry such as the black coal mining industry.

Conclusion on valid reason

[47] Mr Crebert’s failure to comply with the lawful and reasonable direction given to him by Mr Whitney on 27 January 2017, together with the substantial breaches of the Charter and Code, as set out above, gave Mt Arthur sound, defensible and well founded reasons to dismiss Mr Crebert. I am satisfied that Mt Arthur’s reasons for Mr Crebert’s dismissal were not capricious, fanciful, spiteful or prejudiced. I am therefore satisfied that Mt Arthur had valid reasons for Mr Crebert’s dismissal related to his conduct, including its effect on the safety and welfare of other employees.

Was Mr Crebert notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))?

[48] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 14, and in explicit15 and plain and clear terms.16 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[49] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 17

[50] On 1 February 2017, Mr Whitney informed Mr Crebert that he was concerned by reports he had received about pre-start meetings over the weekend and he would be conducting a formal investigation into those matters. Mr Whitney requested that Mr Crebert provide a written statement setting out his recollection of the weekend’s events. Mr Crebert did so on 1 February 2017. 18 During the evening on 1 February 2017, Mr Whitney and Mr Pearce met with Mr Crebert to discuss the allegations they were investigating. Mr Crebert responded to the matters raised with him during that meeting.

[51] On 6 February 2017, Mr Crebert attended a meeting with Mr Whitney and Ms Hennig at which the investigation was discussed with him and he was provided with a “show cause” letter setting out the findings of the investigation into his conduct and inviting him to respond to those matters. Mr Crebert provided his written response to the “show cause” letter on 8 February 2017.

[52] On 13 February 2017, Mr Crebert attended a meeting with Mr Whitney and Ms Hennig at which he was informed of the decision by Mt Arthur to terminate his employment and the reasons for that decision. At that meeting Mr Crebert was also provided with a letter of termination confirming the reasons for termination.

[53] On the basis of the facts set out in the previous three paragraphs, I am satisfied that Mr Crebert was (a) notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to the reasons for his dismissal prior to his dismissal.

[54] I do not accept the argument advanced on behalf of Mr Crebert that he was not notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and was not given an opportunity to respond to those reasons for his dismissal prior to his dismissal, on the basis that the submissions put on behalf of Mt Arthur in these proceedings refer to victimisation and disparagement as reasons for termination, but those allegations were never put to Mr Crebert before he was dismissed.

[55] Mt Arthur’s written outline of submissions include the following submission:

“…later on 29 January 2017, the Applicant approached Mr David Figallo, operator, and further disparaged to Mr Figallo for reporting to Dispatch a co-worker who had been sleeping on the job (Victimisation Incident)” 19

[56] In its outline of submissions Mt Arthur has described the conduct alleged against Mr Crebert and then labelled or characterised it as “victimisation” and “disparagement”. However, these labels or characterisations do not alter the substance of the conduct on which Mt Arthur relied to terminate Mr Crebert’s employment. Prior to his dismissal, Mr Crebert was notified of the conduct alleged against him and given multiple opportunities to respond to that alleged conduct, together with Mt Arthur’s contention that such conduct contravened the Charter and the Code. Accordingly, Mr Crebert was provided with an opportunity to respond to the reasons for his dismissal before the decision was taken to terminate his employment.

Was there an unreasonable refusal to allow Mr Crebert to have a support person present (s.387(d))?

[57] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[58] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”20

[59] Mr Crebert was given the opportunity to have a support person present during the meetings on 1 February 2017, 6 February 2017, and 13 February 2017; he took up that opportunity by taking Mr Urquhart to the meeting with him on 6 February 2017 and Mr Drayton to the meeting on 13 February 2017. I am satisfied that there was no unreasonable refusal by Mt Arthur to allow Mr Crebert to have a support person present to assist at any discussions relating to his dismissal.

Warnings about unsatisfactory performance (s.387(e))

[60] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[61] In this case, the reasons for dismissal related to Mr Crebert’s conduct, rather than his performance, so this consideration is not relevant.

Impact of size of Mt Arthur on procedures followed in effecting the dismissal (s.387(f))

[62] Mt Arthur operates a large business enterprise. I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Crebert’s dismissal.

Absence of dedicated human resource management specialists or expertise (s.387(g))

[63] Mt Arthur employed a human resources manager at the time of Mr Crebert’s dismissal, so this consideration is not relevant.

Other relevant matters (s.387(h))

[64] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[65] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 21 in the following terms:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button[2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited[2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

[66] In this case there are a number of “other matters” which are relevant to my assessment of whether Mr Crebert’s dismissal was harsh, unjust or unreasonable. I will deal with each of those matters in turn below.

[67] The first relevant matter is Mr Crebert’s contention that he was unfairly afforded inconsistent treatment by Mt Arthur in relation to his dismissal. He points to two other employees, Ms Emma Wotton and Ms Kimberley Ohmsen, who received formal counselling, being the least serious form of disciplinary action available under Mt Arthur’s Disciplinary Policy and Procedure, for conduct which he contends contravened the Charter and the Code.

[68] In Darvell v Australian Postal Corporation[2010] FWAFB 4082, the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted):

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:

"[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made."

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

"[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable." [Footnotes omitted]

[24] We respectfully concur with their Honours.”

[69] That Ms Wotton and Ms Ohmsen received formal counselling in connection with the posting of a range of images and comments, each of which I have reviewed, on Instagram 22 (a publicly available platform) does not, in my view, render Mr Crebert’s dismissal as harsh, unjust or unreasonable. I make that finding for the following reasons:

(a) First, the evidence led in these proceedings does not enable me to make a proper comparison of the disciplinary action taken against Ms Wotton and Ms Ohmsen, on the one hand, and Mr Crebert, on the other hand. For example, there is no evidence in these proceedings as to why Ms Wotton and Ms Ohmsen received formal counselling, rather than some other sanction, or what mitigating factors may have been relevant to the decision to impose formal counselling on each of them, including their disciplinary history, length of service, contrition, appreciation and understanding of their wrongdoing, personal and economic circumstances, and the level of their involvement in, or knowledge of, the posting of the images and comments on Instagram; and

(b) Secondly, the conduct in which Mr Crebert engaged and for which he was dismissed is very different in character from the posting of images and comments on a publicly available platform such as Instagram. Mr Crebert failed in a serious way to lead and supervise the employees in the crew for which he was responsible, in accordance with the “safe to speak up” culture which Mt Arthur is seeking to foster at the mine. In contrast, it appears as though Ms Wotton and Ms Ohmsen had some involvement in, or knowledge of, the posting of images and comments on Instagram, some of which are offensive and others of which are non-offensive attempts at humour. Although their conduct in that regard would have contravened the Charter and Code, it is quite different in character from Mr Crebert’s conduct. In short, I am not satisfied that I am comparing “apples with apples” in this case.

[70] The second relevant matter is the length and quality of Mr Crebert’s employment record with Mt Arthur. Mr Crebert was employed by Mt Arthur for about six years. He was not the subject of any disciplinary action during his employment at Mt Arthur, save for in relation to the events which led to his dismissal. Further, each of Mr Whitney and Ms Hennig gave evidence that they were not aware of any occasion where Mr Crebert had failed to comply with the Charter values, apart from in relation to the events on 28 and 29 January 2017. In about April 2016, Mr Whitney selected Mr Crebert from a pool of employees to be made redundant to be employed in the role of Open Cut Examiner. Mr Crebert was selected for that role because of his technical knowledge in relation to coal. The absence of any prior disciplinary action and Mr Crebert’s good performance history weighs in Mr Crebert’s favour when considering whether his dismissal was harsh, unjust, or unreasonable in all circumstances.

[71] Although no prior disciplinary action was taken against Mr Crebert during his employment with Mt Arthur, it is relevant to note that Mr Crebert was given a Performance Improvement Plan (PIP) on about 2 December 2016 in relation to Mr Crebert’s performance at pre-start meetings. I accept Mr Whitney’s evidence that he gave Mr Crebert a copy of the PIP and the covering letter to it after Mr Crebert signed both documents. I do not accept Mr Crebert’s evidence that he did not receive a copy of the PIP and covering letter after he signed them. He did not request a copy of the documents from Mr Whitney after the meeting in which he signed them. He knew they were important documents, and he acknowledged catching up with Mr Whitney regularly in relation to the PIP. 23 I am satisfied, on the balance of probabilities, that Mr Crebert would have requested a copy of the documents after he signed them if he was not given a copy at the time.

[72] Mt Arthur accepts that a PIP is not a form of disciplinary action, but it is given to an employee as a means of assisting the employee to improve their performance in one or more particular areas. The PIP issued to Mr Crebert was developed as a result of Mt Arthur’s concerns, in connection with pre-start meetings, about Mr Crebert’s:

● “Ability to demonstrate desired Leadership Competencies in your core routines which are in line with Charter Values and Code of Business Conduct; and

● Team engagement, specifically your ability to participate and contribute as a team member in all company interactions.”

[73] Mr Crebert was warned in the PIP that “failure to meet the expectations outlined to you as well as compliance with all BHP Billiton Policies, Procedures, Code of Business Conduct and Charter may result in disciplinary action.” The duration of the PIP was three months, ceasing on 2 March 2017.

[74] Mr Whitney noticed improvements in the way in which Mr Crebert managed his team in December 2016. However, after returning from two weeks’ leave in January 2017, Mr Whitney received reports about several incidents at pre-start meetings conducted by Mr Crebert in January 2017, including Operators swearing at and disrespecting Mr Crebert. That was the catalyst for Mr Whitney to instruct Mr Crebert on 27 January 2017 to remind his team at the pre-start meeting on the following day of their responsibilities under the Charter and Code.

[75] The reasons for Mr Crebert’s dismissal related to his conduct in connection with pre-start meetings. It is apparent from the facts summarised in the previous four paragraphs that Mr Crebert was on notice, prior to his dismissal, of the need to improve the way he conducted pre-start meetings and his demonstration of leadership competencies in accordance with the Charter and Code. I have taken these matters into account in my overall assessment of whether Mr Crebert’s dismissal was harsh, unjust or unreasonable.

[76] Also relevant to my assessment of the quality of Mr Crebert’s employment record with Mt Arthur is the contention by Mt Arthur that Mr Heath Hardman, one of the employees in the crew being led by Mr Crebert, asked to move to a different crew because of Mr Hardman’s experiences on Mr Crebert’s crew and the lack of leadership demonstrated by Mr Crebert in terms of Mr Crebert failing to control or address in-fighting within the team. Mt Arthur relies on the evidence of Mr Whitney in support of this contention. In his witness statement, Mr Whitney did not set out his conversations with Mr Hardman in relation to Mr Hardman’s request to transfer away from Mr Crebert’s crew, but instead stated:

“On the basis of my conversations with Mr Hardman over the days immediately before I received this text message [from Mr Hardman requesting a transfer], I understand that this request to transfer was a direct result of Mr Hardman’s experiences on Mr Crebert’s crew and the lack of leadership demonstrated by Mr Crebert in terms of Mr Crebert failing to control or address in fighting within the team.”

[77] Mr Whitney was recalled to give further evidence by telephone in relation to this issue after Mr Hardman had given evidence, at short notice, on behalf of Mr Crebert. In his supplementary oral evidence, Mr Whitney said that he recalled Mr Hardman telling him that he wanted a transfer because he was sick of in-fighting on the crew, he was not happy the situation was not being controlled by the supervisor, and he wanted a change.

[78] Mr Hardman gave evidence to the effect that he requested a transfer because there was disharmony in B crew, Mr Hardman felt stale, and he wanted a new start working in “dirt”, rather than coal. Mr Hardman denies that he requested to transfer away from B crew because of any issue or concern about Mr Crebert’s leadership, or that he said anything to that effect to Mr Whitney. Mr Hardman gave evidence that the disharmony in B crew was not Mr Crebert’s fault; he believes Mr Crebert “is a good OCE, doing the best he can with what he’s got.”

[79] I prefer Mr Hardman’s evidence over that given by Mr Whitney in relation to this issue. Mr Hardman is obviously in the best position to know the reasons he had for requesting a transfer. Mr Hardman gave evidence in a direct, clear and responsive manner, and I accept the truthfulness of the evidence he gave in relation to his reasons for requesting the transfer. Mr Hardman was adamant that his request for a transfer was not related in any way to Mr Crebert’s leadership, and that he did not make any such statement to Mr Whitney. In contrast, Mr Whitney did not set out in his witness statement his recollection of the content of his discussions with Mr Hardman in relation to his request for a transfer. Instead, Mr Whitney set out his understanding of Mr Hardman’s reasons “on the basis of” his discussions with Mr Hardman. I accept that Mr Whitney gave truthful evidence of his understanding in that regard, but the question is whether Mr Whitney’s understanding was correct, having regard to what was said during the conversation. For the reasons I have given, I find, on the balance of probabilities, that Mr Hardman has a more accurate and reliable memory than Mr Whitney of his conversation with Mr Whitney about the reasons for his transfer. I therefore find that Mr Hardman did not tell Mr Whitney that he wanted a transfer as a result of any lack of leadership on Mr Crebert’s part and Mr Hardman’s request to transfer away from Mr Crebert’s crew was not in any way related to Mr Crebert’s leadership of that crew.

[80] The third relevant matter is remorse. There is no doubt that Mr Crebert has apologised and expressed remorse to Mt Arthur. By way of example, in his show cause response Mr Crebert acknowledged he “should have specifically raised the Code during the pre-start of 28 January 2017, and addressed Mr Crouch in relation to comments made by him during the pre-start of 29 January 2017. I am sincerely apologetic and remorseful.” Mr Crebert then went on in his show cause response to explain how he upheld, and complied with, the Charter values. The genuine remorse expressed by Mr Crebert weighs in his favour in considering whether, on balance, his dismissal was harsh, unjust or unreasonable, but I have given this factor less weight than it would otherwise be accorded by reason of the fact that Mr Crebert has maintained at all times that he did not breach the Charter or Code in connection with his conduct on 28 and 29 January 2017. Mr Crebert’s failure to recognise that he contravened the Charter and Code is of concern, and demonstrates that he does not appreciate all that was required of him by Mt Arthur as a supervisor at the mine.

[81] The fourth relevant matter is the personal and economic consequences of the dismissal for Mr Crebert and his family. I accept that the consequences of Mr Crebert’s dismissal have been, and will continue to be, difficult for his personal and economic situation. Mr Crebert is 55 years of age and is the main breadwinner in his family. He has a wife and two adult sons, one of whom lives at home and is financially supported by Mr Crebert and his wife. Mr Crebert lives in a regional area 24 where it is difficult to obtain alternative full time employment. There are limited opportunities available for Mr Crebert in the mining industry in the Hunter Valley, given the present state of the industry. Mr Crebert cannot move away from the Hunter Valley because his wife works full time in the area. Mr Crebert does not have any qualifications or skills, apart from his Open Cut Examiner’s ticket and his skills and experience in the mining industry, so moving to another industry is not a realistic option. Mr Crebert has obtained some alternative employment since his dismissal with Mt Arthur, but he is working at a lower level (as an Operator) on a casual basis, and he is earning considerably less than he would have earned had he remained employed by Mt Arthur. He has two substantial mortgages to service on investment properties.

[82] The fifth relevant matter is the gravity of the conduct in which Mr Crebert engaged. In isolation, I do not consider Mr Crebert’s failure to comply with Mr Whitney’s direction to remind his crew on 28 January 2017 of their obligations under the Charter and Code to be particularly serious. Mr Crebert was trying to address the disharmony within his crew at the pre-start meeting and the principal reason for Mr Crebert not complying with the direction was his concern that the meeting was taking too long and the employees needed to commence productive work. In the result, Mr Crebert made a decision to bring the meeting to an end and to remind the crew of their obligations under the Charter and Code at a later pre-start meeting.

[83] Mr Crebert’s breaches of the Charter and Code, as set out above, are in a different category; they are far more serious than his failure to comply with Mr Whitney’s direction. Although Mr Crebert did not set out to intentionally breach the Charter and Code, his conduct amounted to a serious breach of his obligations under those policies. As a supervisor and therefore a leader in the workplace, Mr Crebert had a significant obligation to demonstrate the Charter values and ensure his team complied with those values and the Code at work. His task in that regard was not an easy one, but it was important to the establishment and maintenance of a culture that Mt Arthur is seeking to foster at the mine.

[84] Having regard to the totality of the conduct on which Mt Arthur relied to dismiss Mr Crebert, I am satisfied in all the circumstances that Mr Crebert’s dismissal was not disproportionate to the gravity of his conduct, nor was it harsh in any other sense.

Conclusion

[85] Mt Arthur had sound, defensible and well founded reasons for dismissing Mr Crebert on the basis of his conduct. In particular, Mr Crebert’s dismissal was based on his substantial breaches of Mt Arthur’s policies and his failure to comply with a lawful and reasonable direction. Mt Arthur undertook a detailed investigation into Mr Crebert’s conduct. Mt Arthur gave Mr Crebert every chance to participate in the investigation and respond to the allegations made against him before the final decision was made to terminate his employment. He was afforded procedural fairness throughout the process.

[86] After considering each of the matters specified in section 387 of the Act, I am satisfied that Mt Arthur’s dismissal of Mr Crebert was not harsh, unjust or unreasonable. Mr Crebert’s unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

Ms Short, J, Legal Officer of the CFMEU, for the Applicant

Ms Williams, J, counsel, for the Respondent

Hearing details:

2017

Newcastle:

5 and 6 June

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

5 Ibid

6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

 7   Ibid

 8   [2013] FWCFB 6191

 9   Exhibit R4 at [42], BW-5, and BW-7.

 10   Ibid

 11   Exhibit 4 at [43]

 12   Ex R4 at annexure BW-2 (Code), page 10

 13   Exhibit R6 at [20(c)]

 14   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 15   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 16   Previsic v Australian Quarantine Inspection Services Print Q3730

 17   RMIT v Asher (2010) 194 IR 1 at 14-15

 18   Exhibit R4 at BW-6

 19   Respondent’s outline of submissions dated 25 May 2017 at [6(c)] and see, too, the reference to “victimization” at [11]

20 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].

 21   [2013] FWCFB 6191

 22   Exhibit A1 at JD-3

 23   Exhibit A5 at [129]

 24   Singleton

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