The evidence as to the investigation and the warning
202 As the General Manager of the Food Can division and the person who decided to issue the Final Written Warning to Mr Zwart, Mr Wiltshire is also an important witness. I have set out at [161]-[170] the link between his imposition of the warning and Mr Zwart's responsibilities as a health and safety representative. Mr Wiltshire's evidence is that the warning was imposed because of Mr Zwart's conduct in the meetings. As I have previously said, I consider that Mr Zwart was acting as a health and safety representative both in tagging the forklifts, and in attending the subsequent meetings at Visy's request to discuss resolution of the health and safety issue. I do not see his conduct in tagging the forklifts or in the meetings as taking him outside that role.
203 Further, Mr Wiltshire's evidence that the warning was imposed because of:
(a) a lack of cooperation:
(b) a change in position to that of a concerned employee;
(c) a failure to follow OHS/Dispute resolution procedures; or
(d) lying about "near misses".
is implausible for the reasons already canvassed.
204 I turn now to deal with the implausibility of Mr Wiltshire's evidence that he solely relied on Mr Halse's report from the independent investigation to ascertain the facts as to Mr Zwart's conduct, and then reached the decision to impose the warning based solely on that report.
205 On Mr Wiltshire's evidence, the point of the independent investigation was that it removed him and other Visy employees from the fact finding exercise. His evidence is that he divorced himself as far as possible from the investigation, and was concerned that the process be objectively seen as fair. He says that he did not seek to form his own view on the facts, instead relying on the independent investigation. As one example of this approach, he says he removed himself from fact finding by only reading the first eight pages of Mr Halse's report. The pages that followed were extracts from the interviews rather than findings. According to his evidence, the principal virtue of the approach he adopted is that any decision in relation to Mr Zwart would be based upon facts found in an impartial and independent investigation, without interference by Visy.
206 While there is no legal requirement that an investigation following allegations of employee misconduct be independent, Mr Wiltshire's evidence is that an independent investigation was appropriate. The thrust of his evidence is that Mr Zwart's conduct was impartially and independently investigated, and that in making the decision to issue the Final Written Warning he was largely quarantined from fact finding and any bias. The benefits of this approach are clear.
207 However, in dealing with the purported independence and impartiality of the investigation, the evidence indicates Visy's guiding hand. This evidence includes the following:
(a) From the outset Mr Harmer was involved in the framing of questions that would constitute the investigation. After first circulating the questions to, among others, Mr Wiltshire for feedback, he provided Mr Halse with the questions that should be put to Mr Zwart. It was clearly part of the arrangement between Visy and Mr Halse that Visy approve the investigation questions prior to the interview occurring;
(b) Because of a privacy protocol put in place by Mr Halse prior to the interviews beginning, Mr Halse interviewed the managers alone. However, Mr Harmer instructed Mr Hayes to attend the interview with Mr Zwart. Mr Halse permitted this to occur notwithstanding the protocol;
(c) Benjamin Gee of Fischer Cartwright Berriman, then the solicitors for Visy in the dispute, was in communication with Mr Halse at least between 15 and 17 August 2011. He provided Mr Halse with a copy of Mr Scott's affidavit referred to above.
(d) After Mr Halse had delivered the first version of his report to Visy on the afternoon of 17 August 2011 Mr Harmer instructed him to speak with Mr Renehan in relation to some key disputes. I infer that Mr Harmer intervened in this way in an attempt to have the report revised so as to strengthen it.
(e) On 17 August at 8.21 pm Mr Gee emailed Mr Halse seeking to discuss the report urgently. He said "I have some questions for clarification purposes that I would like to put to you, in case this leads to you updating or reviewing the report."
There was no change of significance to the report as a result of either of the interventions referred to in (d) and (e) above.
208 It seems likely that Mr Halse's findings are affected by the statements made by Mr Street. In relation to Mr Zwart tagging the forklifts Mr Street said to Mr Halse that Mr Zwart was not motivated by any genuine safety concern and deliberately obstructed production. Mr Street was the senior manager present during the events of 5 August and his statement is likely to have materially increased the prospect of Mr Halse finding that Mr Zwart had been obstructive and uncooperative. Importantly, Mr Street now says that his statement to Mr Halse was incorrect.
209 While I draw no inference that Mr Halse's findings were necessarily based on any interference or on incorrect statements provided by Mr Street, I am not satisfied that the investigation was independent and impartial as Mr Wiltshire contends.
210 The matters to which I have referred may be seen to indicate a relationship in which Mr Harmer supervised Mr Halse. While the impartiality and independence of his investigation and report is not critical to my decision, it is nevertheless significant that Mr Halse, who was in a position to confirm its impartiality and independence, was not called. There can be little doubt that Mr Halse is correctly seen as being in Visy's camp and it would be unrealistic to expect the applicants to call him: Payne v Parker [1976] 1 NSWLR 191 per Glass JA. Visy's unexplained failure to call him justifies the inference that his evidence would not have assisted it: Jones v Dunkel (1959) 101 CLR 298.
211 Mr Wiltshire says that he based his decision to issue the Final Written Warning solely on Mr Halse's findings. While the possibility that Mr Wiltshire reached his decision based on erroneous findings by Mr Halse must be accepted, my conclusion as to the independence and impartiality of the investigation remains relevant to my decision not to accept Mr Wiltshire's evidence as credible.
212 Nor am I satisfied that Mr Wiltshire was quarantined from the fact finding process, or that his decision to issue the Final Written Warning was based only on Mr Halse's report.
213 First, the evidence shows that Mr Wiltshire was a party to conversations regarding Mr Zwart's conduct involving variously Mr Street, Mr Harmer and Mr Hayes. It is likely that Mr Street's views about Mr Zwart being deliberately obstructive found their way to Mr Wiltshire either directly from Mr Street or through Mr Harmer and Mr Hayes. Mr Wiltshire did not speak to Mr Scott, and Mr Hayes' and Mr Harmer's understanding of what happened was principally provided to them by Mr Street.
214 Secondly, Mr Wiltshire requested and received a summary of events prepared by Mr Hayes which included statements that Mr Zwart caused a cessation of work, that he had caused a loss of production by tagging the forklifts, and that he had alleged a number of near misses.
215 Thirdly, Mr Wiltshire requested and received a copy of Mr Scott's affidavit sworn for the first interlocutory hearing which provided a detailed account of his version of events. While there would ordinarily be nothing questionable about this, he did so after deciding that the facts should be found in an independent and impartial investigation. While stating that it was important that he be removed from the fact finding process, in receiving Mr Scott's affidavit he received views in a way that he previously considered could be seen as unfair. His decision to obtain Mr Scott's affidavit reduces the credibility of his statement that the fact finding was made entirely by Mr Halse.
216 Fourthly, following receipt of Mr Halse's report, Mr Wiltshire spoke to Mr Street as to the way in which Visy had previously dealt with similar incidents. This is surprising too given that Mr Street was removed from taking an active role in the investigation because Mr Harmer and Mr Wiltshire were concerned for the integrity of that process. While he says that in speaking to Mr Street he did not refer to the details of the case, it would have been plainly apparent to Mr Street who they were discussing. It was disingenuous of Mr Wiltshire to suggest otherwise. In cross-examination it became apparent that Mr Street was aware that Mr Wiltshire was referring to Mr Zwart.
217 In the finish, I was left with serious doubts as to the reliability of Mr Wiltshire's evidence. He sought to paint himself as somehow above the fray in the dispute, and as a person whose role was only to make any necessary disciplinary decision based on facts found by an independent third party. In my view this was far from the truth. I am not satisfied on the evidence that the investigation was independent and impartial as he says, or that he was quarantined from the fact finding process or any bias.
218 Notwithstanding his protestations, I am not satisfied that Mr Wiltshire's decision to issue the Final Written Warning was based only on Mr Halse's report. In my view, it is more likely to be also based on information provided to him by Mr Street, Mr Scott, Mr Harmer and Mr Hayes. Mr Street tried to disguise from the Court his belief that Mr Zwart had deliberately disrupted production on 5 August, but I have little doubt that this important view was communicated to Mr Wiltshire. Such a serious allegation required to be passed up the management chain. I do not accept Mr Wiltshire's evidence to the contrary. In the end I do not accept his evidence as credible that no part of his reasons for imposing the Final Written Warning included Mr Zwart's actions in tagging the forklifts and/or asserting his views in subsequent meetings.
219 In broad summary, Mr Scott and Mr Street gave evidence as to the events of 5 August (and in Mr Street's case the decision to investigate and suspend), Mr Hayes and Mr Harmer gave evidence as to the role of Visy's Human Resources department in the decisions, and Mr Wiltshire gave evidence as to the decision to impose the warning. Only Mr Zwart gave evidence for the applicants. It is necessary to consider the cumulative effect of the respondents' evidence as my fact finding process must be directed at the totality of the evidence, and not to its individual strands: Director, Office of the Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8 at [74] per Besanko and Perram JJ. I consider that the inconsistencies and unreliability of the respondents' evidence are such that I cannot accept it as capable of discharging the onus.