Consideration
176 Taking into account the evidence as a whole, notwithstanding the contentions of the respondent that it has not taken adverse action against Mr Meikle within the terms of s 342 of the FW Act, I am satisfied that the respondent took adverse action against Mr Meikle for reasons which included, as a substantive and operative reason, his exercise of workplace rights, thus contravening s 340 of that Act. I have formed this view for the following reasons.
177 First, Mr Hennessy gave evidence that, in the course of his role with the respondent, he made the decision to exclude Mr Meikle from the Mine. I am satisfied that Mr Hennessy was the relevant decision-maker. His evidence as to why he made that decision is crucial in determining whether the respondent has discharged its onus. As French CJ and Crennan J observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500:
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?"
(footnotes omitted)
178 Second, Mr Hennessy's evidence was that he made the decision to exclude Mr Meikle from the Mine after reviewing the information Mr Cameron provided to him on 9 December 2019, and concluding that Mr Meikle was an unacceptable safety risk because Mr Meikle refused to participate in an investigation regarding his reliance on an incorrect SOP. He denied that his decision had anything to do with the lightning event", the overtaking manoeuvre, or the tagging incident. The difficulty with this evidence however is that it is inconsistent with other communications to Mr Meikle from both Ms Dow and Mr Cameron concerning Mr Meikle in the days leading up to the decision to exclude Mr Meikle, as well as evidence of Mr Hennessy and Mr Cameron concerning the usual approach by the respondent to incorrect tagging and evidence of Ms Rakitovszky concerning the seriousness of Mr Meikle's conduct. As French CJ and Crennan J continued in Barclay:
45. … 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…
(footnotes omitted, emphasis added)
179 In particular I note the following.
180 As I have already observed, Ms Dow had plainly sent a detailed email to Mr Hennessy on 10 December 2019, labelled as a "Copy of File Note" in her evidence. It is convenient to set out the body of the email here:
On Saturday night 07/12/19 @ 6:45pm approx, I spoke to N/S OCE Laurie Gibson on the phone to see how the prestart had gone as there had been a weather event the night before and a decision had been made to roll out sections of the lightning TARP due to some confusion and concerns expressed by CMWs. The level 3 and 4 of the TARP was communicated by the Supervisors including the assurance that if anyone felt unsafe, they could exercise their rights to stop operations.
Laurie's feedback to me was that there was a few CMWs that had expressed concern in the prestart relating to the level 4 TARP regarding the potential of rubber tyred equipment being struck by lightning. He also made a point of mentioning that Darryl Meikle was vocal in the prestart about this matter including previous directives/ recommendations that the Inspectorate had issued to the industry.
Laurie had concerns that Darryl's comments were confusing the crew further and at that point, I asked Laurie if he could organize with Darryl's Supervisor if he could be made available at the end of the shift so I could catch up with him to understand his concerns and talk through the DNM severe weather procedure and TARPs in the morning.
When I arrived on Sunday morning to the Main Go Line office, Darryl was waiting for me and I greeted him with a hello and said lets catch up for a chat. Darryl inquired why I wanted to see him and I advised that I was made aware that he had concerns regarding our severe weather procedure and Lightning TARP and I wanted to understand his concerns.
We had a chat for approx. half an hour on not just this matter as he also raised other concerns such as CMWs not conducting prestart inspections correctly, the time allocated to do hot seat prestart inspections and sections of the coal mining legislation relating to "all persons obligations generally."
I believe the discussion with Darryl was an informal chat in which I told him on a couple of occasions that my door is always open to him and other CMWs if they have concerns or are wanting any documentation relating to the site SHMS.
The OCE office door was left open during our discussion and OCE Michael North was witness to some of this discussion after he had completed a handover with the N/S OCE Laurie Gibson.
At no time, did I speak to Darryl in a way that was disrespectful or not aligned to the BMA Charter Values.
Regards,
Angela Dow
Shift Compliance Coordinator - OCE
BMA Operations - Daunia Mine
BHP Billiton Mitsubishi Alliance
…
181 The applicant submitted, in summary, that Ms Dow's inability to explain why she had removed the header from the document and substituted "diary note" was suspicious, in that it was an attempt to obscure the existing level of interest Mr Hennessy and Mr Whitney had in matters involving Mr Meikle as at 10 December 2019. As I have noted, the respondent submitted in turn that the attack on Ms Dow was somewhat of a "red herring", because there was no evidence nor any suggestion that she was involved in the decision-making process to exclude Mr Meikle from the Mine. I accept that Ms Dow was not involved in the decision-making process concerning Mr Meikle's exclusion, however as I have already observed I consider it reasonable to infer that Ms Dow sent an email containing the material in her "diary note" to management of the respondent at the MineI consider it further reasonable to infer that Ms Dow had done so in light of an already existing interest in Mr Meikle on the part of management -at the Mine prior to 10 December 2019.
182 In addition to my findings in relation to the "diary note" sent by Ms Dow, at the hearing the applicant produced a further email sent by Ms Dow forwarding an email to "Mr Nicholls" at approximately 10am on 8 December 2019, notably, after her meeting with Mr Meikle. The contents of the forwarded email was an earlier email sent to Ms Dow from Mr Whitney, regarding the outcome of the lightning event and enclosing information on lightning strikes. Relevantly, Ms Dow wrote in her email:
Interesting times - More complaints last night and the morning started as soon as I walked in the office with a 35 min discussion with Darryl [sic] Meikle who is an operator on nightshift questioning me on the 101 and what was delivered a [sic] prestart.
Of Note - His surname……………
AD.x
183 During cross-examination Counsel for the applicant suggested to Ms Dow that she was unhappy to have had a 35 minute conversation with Mr Meikle, followed by the insinuation that there was a connection between Mr Meikle and his brother, Mr Jason Meikle, who happened to be another employee of BMA or associated with BMA. In making this insinuation, Counsel for the applicant submitted that Ms Dow was attempting to convey by the series of dots after the words "His surname", and in the context of the email, that Mr Meikle was a "troublemaker".
184 Although Ms Dow insisted there was nothing untoward in relation to the dots, I do not consider this entirely persuasive. Rather, it supports the applicant's contention that there was an, albeit undefined, interest in Mr Meikle by management.
185 More pertinently however, Mr Hennessy's evidence of his reasons for excluding Mr Meikle from the Mine was not credible. Mr Hennessy gave evidence that the only email he had received from Mr Cameron concerning Mr Meikle was late on the evening of 9 December 2019, and that he therefore formed the conclusion that Mr Meikle was a safety risk because he was, in essence, unco-operative in relation to a proposed investigation. However during cross-examination of Mr Hennessy, Counsel for the applicant put to him the existence of numerous other emails sent to Mr Hennessy by Mr Cameron on the morning of 9 December 2019 from 4.43am through until 6.01am, to which Mr Hennessy had not referred in his affidavit. During cross-examination, Mr Hennessy admitted that on the morning of 9 December 2019 he knew that Mr Meikle had had an incident the night before involving the removal of the out of service tag, and that Mr Hennessy had had a meeting with his own supervisor Mr Whitney to discuss Mr Meikle (transcript pp 208-209). When pressed by Counsel as to why Mr Hennessy had not also referred to previous correspondence between Mr Cameron and Mr Hennessy concerning Mr Meikle, Mr Hennessy's evidence was as follows:
Well, you didn't tell her Honour about them, did you?---No, I was - when I had done my affidavit, I didn't have them emails at the time. My - my emails in my inbox might only last about three months, and they go into the archive somewhere, so yes, I didn't have them when I done my affidavit; I didn't have those emails with me, no. I had done it to the best of my recollection.
(transcript p 214 ll 6-10)
186 In my view Mr Hennessy's explanation is implausible, given that Mr Hennessy had plainly had access to the email sent to him by Mr Cameron on the evening of 9 December 2019. No convincing reason exists as to why he would not have had access to other contemporaneous correspondence. Mr Hennessy subsequently conceded this point at the hearing (transcript p 215-216).
187 Further, the fact that Mr Hennessy's evidence did not include reference to the discussions with his own supervisor, Mr Whitney, regarding Mr Meikle is concerning. Mr Hennessy conceded that Mr Whitney had sent him an email at 11.33am on 9 December 2019 in the following terms:
You will have to talk me through this so I understand correctly. Sounds like there are multiple issues that have occurred here. Not following delay processes properly, and removing a tag when not authorised to do so.
188 Mr Hennessy also conceded that he had met with Mr Whitney shortly thereafter to discuss Mr Meikle. That Mr Hennessy did not refer to this correspondence or meeting in his evidence not only damages his credibility as a witness, it further fuels the inference that the management of the respondent had a pre-existing interest in Mr Meikle.
189 Further, as became apparent during cross-examination of both Mr Cameron and Mr Hennessy, neither were honest at the time of Mr Meikle's exclusion from the Mine in relation to Mr Meikle's alleged error in relying on the "incorrect" SOP and the overtaking manoeuvre. It is no longer in dispute that the relevant Daunia SOP was exactly the same as the relevant Goonyella Riverside SOP , that the same document was approved at both mines, and to the extent that Mr Meikle had referred to an SOP with "GRM" on the cover it was the same as that approved at the Mine. It appears that, at the time Mr Cameron called Mr Hennessy on the night of 9 December 2019 to discuss Mr Meikle, he knew that Mr Meikle's position was that the SOP had been approved at both mines, however Mr Cameron did not tell Mr Hennessy this (transcript p 302, 303).
190 Perhaps even more egregiously, Mr Hennessy gave evidence that at the time of WorkPac's investigation of Mr Meikle, Mr Hennessy knew that the allegation of Mr Meikle relying on the "wrong" SOP was false, but did nothing to retract it. I note in particular the following evidence of Mr Hennessy as emerged during cross-examination:
Now, you can see in her email that Ms Kemp is seeking copies of the traffic management SOP for Daunia, which is the SOP that applies at your mine?---Yes.
And a copy of the SOP for Goonyella Riverside Mine, which is the one which Mr Meikle was alleged to have used. Correct?---Yes. Yes.
And in response you send her the attachment, and you say you do not have a copy of the GRM SOP. That's in the front page?---Yes.
So you obviously went and dug out from the system the SOP that applies at Daunia, correct?---Correct.
Now, on the first page of that SOP it says, doesn't it:
This SOP has been separately adopted at each of the following mines as that mine's SOP.
And then it says:
This followed separate risk assessments and consultations and so on.
---Mmm.
And then there is a table which identifies the mines and the dates on which it was adopted. Correct?---Correct.
And it's right to say, isn't it, that it was adopted at Daunia on 14 December 2018?---Correct.
And this very document was adopted at Goonyella Riverside on 4 June 2019?---Correct.
So as at 8 or 9 December 2019, Goonyella Riverside Mine and Daunia Mine had exactly the same SOP in respect of the operation of vehicles and mobile equipment. Correct?---It appears correct, yes.
And you would have seen that when you sent - when you dug that out for Ms Kemp, correct?---I didn't necessarily read that. I would have pulled up the procedure then attached and sent it to him.
It's on the front page, Mr - - -?---Yes. But when she wanted - I wouldn't have read the document. I would have pulled the document out and sent it to the right people.
Well, can I suggest to you that at the moment you sent that SOP to Ms Kemp you were aware that the allegation that Mr Meikle had been using the wrong SOP had no foundation?---It appears that way, yes.
And did you write to WorkPac at that point withdrawing the allegation against Mr Meikle?---No.
That's not treating Mr Meikle with fairness, is it?---It's not.
And did you take any disciplinary action against Mr Cameron?---No.
You understand that Mr Cameron started you down this path, didn't you?---Well, he's my reporting supervisor. So everything gets - he sends to me, yes.
And it would appear that about 20 seconds worth of work on Mr Cameron's part would have revealed that there was no substance in his allegation, wouldn't it?---For that one, yes.
And did you take any action against Mr Cameron for that?---No.
191 Finally, although both Mr Cameron and Mr Hennessy in their evidence sought to convey that the alleged breach by Mr Meikle in respect of the out of service tag was serious, they also conceded that such conduct would be at the lower end of any disciplinary outcome, usually involving some form of counselling or a written warning (transcript p 187 ll 15-21, p 259 ll39-40). Indeed, Mr Hennessey gave evidence during cross-examination that exclusion of a WorkPac employee from the Mine was considered to be a significant step that was not to be taken lightly. In particular, Mr Hennessey also noted that training new staff was time consuming and costly and therefore it was in the interest of BMA to keep staff turnover at a minimum.
192 Mr Hennessy was unable to give a convincing reason why, in the case of Mr Meikle, what he conceded to be a relatively minor matter warranted escalation to discussion with Mr Whitney (transcript p 201 ll 31-38). In so noting I also have regard to evidence of Ms Rakitovszky, who in relation to the incorrect placement of the out of service tag deposed as follows:
40. In all the circumstances, I concluded that Mr Meikle had breached the Isolation and Tagging SOP. In doing so, that was also in breach of the terms and conditions of his employment with WorkPac which required Mr Meikle to comply with applicable Site policies, procedures and practices such as the Isolation and Tagging SOP.
41. I accepted that Mr Meikle's conduct was inadvertent and not deliberate. I did not consider that Mr Meikle's conduct in breaching the Isolation and Tagging SOP was so serious as to warrant termination of employment. However, it was a breach of the Isolation and Tagging SOP.
42. For those reasons, I considered that a first written warning was an appropriate disciplinary outcome. This was consistent with other disciplinary outcomes involving breaches of tagging and isolation procedures of similar severity that I was aware of.
193 Returning to Mr Hennessy's claimed reasons for his decision to exclude Mr Meikle from the Mine, his alleged belief that Mr Meikle posed an unacceptable safety risk at the Mine has no substance, and is simply implausible. Rather, the evidence indicates that Mr Meikle insisted on exercising workplace rights at the Mine, and that in so doing he essentially aggravated management at the Mine, including Mr Cameron and Mr Hennessy.
194 The FW Act is contravened if it can be established that a prohibited reason comprised a substantial and operative reason, or reasons including the reason, for the relevant adverse action: s 360 of the FW Act, Board of Bendigo Regional Institute of Technical and Further Education v Barcla [2012] HCA 32; (2012) 248 CLR 500 at 535 [104]. To the extent that the respondent has sought to meet the onus on it to rebut the presumption that the adverse action taken against Mr Meikle by the respondent was for a reason prohibited by the FW Act, it has been unsuccessful.