Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd - [2013] FCA 762 - FCA 2013 case summary — Zoe

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REASONS FOR JUDGMENT 1 On 28 July 2011 the respondent terminated the employment of Mr Kevin Adams and Mr Justin Winter. At all material times both Mr Adams and Mr Winter were members of the applicant union. The applicant claims that the terminations constituted adverse action in contravention of s 346 of the Fair Work Act 2009 (Cth) ("the FWA"). On 9 August 2011 pending final determination of the proceeding, Logan J ordered that the respondent reinstate Mr Adams and Mr Winter to their former employment on the same terms and conditions which applied prior to 28 July 2011. 2 By way of substantive relief, the applicant seeks declaratory orders and penalties pursuant to the FWA against the respondent. 3 The relevant facts can be summarised relatively briefly. It appears that following conversations in August 2008 involving Mr Adams, Mr Winter, and Mr Robert Cramond (who was also an employee of the respondent), Mr Cramond made a complaint to the respondent alleging (inter alia) bullying by Mr Adams and Mr Winter. After investigation of the complaint by human resources staff of the respondent, the complaint was found to be unsubstantiated. On 6 August 2009 Mr Adams commenced defamation proceedings in the District Court of Queensland against Mr Cramond in respect of Mr Cramond's complaints to the respondent. On 24 June 2011 McGill DCJ dismissed Mr Adams' application (Adams v Cramond (unreported, District Court of Queensland, McGill DCJ, 24 June 2011)), and in so doing found that Mr Adams and Mr Winter had physically threatened the defendant. On 20 July 2011 Mr Brandon Craig, the general manager and site senior executive of the mine, caused "show cause" letters to be issued to Mr Adams and Mr Winter. The purpose of the letters was to invite them to explain why the respondent should not take disciplinary action against them. Subsequently the respondent terminated the employment of Mr Adams and Mr Winter on the basis that they had (inter alia) engaged in conduct amounting to harassment and workplace bullying. 4 The applicant claims that the reasons given by the respondent for the termination of the employment of Mr Adams and Mr Winter, which termination took place several years after the occurrence of relevant events, do not make sense in light of earlier findings of the respondent following internal investigation. The applicant claims that the real reasons for the termination of their employment are reasons prohibited by the FWA. 5 In my view, the applicant has substantiated its claim against the respondent. Before explaining my reasons for so finding it is useful to explain the background in more detail.

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BACKGROUND 6 At all material times BM Alliance Coal Operations Pty Ltd ("BMA Coal") operated an open-cut coal mine at Peak Downs in Central Queensland ("the mine"). BMA Coal operated the mine under appointment by the BHP Billiton Mitsubishi Alliance ("BMA"), an incorporated joint venture between the BHP Billiton group and the Mitsubishi group. The respondent is a corporate entity related to BMA Coal and BMA. It employs labour, and contracts with others for the provision of labour at the mine. 7 Mr Adams commenced employment with the respondent as a production worker at the mine on 23 June 1997. At all material times Mr Adams was a member of the applicant and vice president of the Peak Downs Lodge of the applicant. Mr Adams' functions as vice president included dealing with industrial issues that arose, advocating for and providing advice to members of the applicant, and keeping an eye on membership levels of the applicant at the mine. 8 Mr Winter commenced employment with the respondent as a production worker at the mine on 21 August 2005. At all material times Mr Winter was a member of the applicant. In August 2008, Mr Winter was the secretary/treasurer of the applicant's Peak Downs Lodge. His duties included being responsible for all correspondence received by the Lodge, keeping the minutes of meetings, recruiting new members and processing membership applications. Mr Winter resigned as secretary/treasurer of the Peak Downs Lodge in November 2009, and since then has held the position of co-delegate on the A Crew Post Strip. His duties include providing industrial advice to members in A Crew and representing members of A Crew who are involved in industrial disputes. 9 In August 2008 Mr Robert Cramond was a production worker at the mine. He was a member of the D Crew and reported on a day-to-day basis to the shift supervisor Mr Jamie Bray. 10 From 11 October 2006 to 4 August 2008 Mr Cramond was a member of the Peak Downs Lodge, paying union dues of about $48.00 per week. Prior to his employment with the respondent, Mr Cramond worked in the construction industry and was a member of the Australian Workers Union. 11 When Mr Cramond commenced employment at the respondent's mine, permanent employees were entitled to housing benefits under the respondent's Moranbah Housing Policy 2004 ("2004 Housing Policy"). At the time that he became a permanent employee of the respondent in October 2006 he received an accommodation subsidy of $267.00 per week from the respondent under the 2004 Housing Policy. At material times Mr Cramond lived with his wife in a caravan in a caravan park, and used $94.95 of the weekly subsidy to pay caravan park fees, and the balance for his living expenses. 12 The 2004 Housing Policy was renegotiated between the applicant and the respondent in 2007 and early 2008. It appears that objectives of the applicant in renegotiating the housing policy were (inter alia) to require BMA to build new houses, purchase houses in Moranbah for employees, or pay increased rental housing subsidies. 13 The new housing policy commenced on 11 February 2008 ("2008 Housing Policy"). Under the 2008 Housing Policy an employee renting a caravan under the 2004 Housing Policy was only entitled to continue to access the housing subsidy provided they did not claim a higher level of subsidy than the actual rent they were paying immediately prior to the commencement of the 2008 Housing Policy. 14 It appears that notwithstanding the commencement of the 2008 Housing Policy, Mr Cramond preferred to continue living in his caravan. The commencement of the 2008 Housing Policy left Mr Cramond in a worse financial position than under the 2004 Housing Policy - he was entitled to his caravan park fees only, being $94.95 per week, and not the extra money he had used for living expenses. 15 In early August 2008, the caravan park at which Mr Cramond lived increased its rental fees to $100.00 per week. Mr Cramond attended a town administration office operated by the respondent and was told that he was not entitled to claim the $5.05 increase in his caravan park fees under the 2008 Housing Policy. Mr Cramond felt that the applicant had let him down because he chose to live in a caravan park, and had given away an entitlement for which it had previously fought. As a result Mr Cramond decided to resign as a member of the applicant. On 1 August 2008 Mr Cramond attended the office of the Peak Downs Lodge and informed a union member that he wished to resign his membership of the union.

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Mr Winter's version of events 29 In summary, Mr Winter gave evidence that: Mr Cramond said he had resigned from the applicant because of the housing issue. Mr Winter explained why the applicant believed the new housing agreement was beneficial to employees at the mine. Mr Cramond said he disagreed, but had accepted the position he was in regarding his accommodation. He accepted he could have raised his concerns at the monthly meetings or special purpose meeting held by the applicant in relation to the housing agreement but did not. Mr Cramond then thanked Mr Winter for his time in guiding him through the housing grievances. Mr Cramond said he had been treated badly by the applicant and its members. Mr Cramond felt as though members of the applicant had turned their backs on him since he resigned from the applicant. Mr Winter said that it was Mr Cramond who had turned his back on the applicant and his former union comrades. Mr Winter and Mr Cramond then had further discussions about how Mr Cramond had been treated by members of the applicant since his resignation as a member. Mr Winter deposed that this conversation was not heated. Mr Winter encouraged Mr Cramond to consider rejoining the applicant, and Mr Cramond agreed to rejoin. Mr Winter said he would contact Mr Cramond as soon as he had discussed the situation with Mr Low, president of the Lodge, and consulted the organisational rules in relation to accepting new members to the Lodge. Mr Winter left the pre-start office to commence his shift. Mr Winter contacted Mr Low. Mr Low said it would not be simple for Mr Cramond to rejoin as a member of the applicant given the circumstances in which he had resigned, and that Mr Cramond would have to make an application to rejoin the applicant. Subsequently Mr Winter arranged to meet with Mr Cramond. Mr Winter informed Mr Cramond that he might need to make a special application to rejoin the applicant. In response, Mr Cramond became agitated and informed Mr Winter that he felt harassed and threatened by the applicant and Mr Winter. Mr Winter reaffirmed to Mr Cramond his intention to assist Mr Cramond to rejoin the applicant. Mr Cramond asked Mr Winter what had been said about him at the monthly meeting of the applicant. Mr Winter said that he could not tell Mr Cramond that information because he was not a member of the applicant. Mr Cramond requested an apology from Mr Winter on behalf of the Peak Downs Lodge. Mr Winter refused to apologise. Mr Cramond said he would not proceed with his complaint against Mr Winter if Mr Winter immediately apologised. Mr Winter said that Mr Cramond would have to rethink his strategy if he wanted to blackmail him into apologising.

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Mr Cramond's version of events 30 In summary, Mr Cramond gave evidence that: When he left the pre-start room with Mr Winter, Mr Cramond deposed that he said, "I hope you're going to treat me better than the last guy!" Mr Winter ignored the remark and introduced himself as the secretary of the Lodge. Mr Winter asked Mr Cramond what the problem was. Mr Cramond said the union had given away his accommodation subsidy and he had lost $172.00 a week. He had to pay his rent increase and did not want to move. He felt the applicant union had "sold him out", that he should be able to live where he wanted to, and that if he were working for a contractor he would receive at least $400.00 per week. Mr Winter said the cost was factored into Mr Cramond's wages. Mr Winter said, "Why don't you go work for a contractor then and get the rental subsidy". At this point Mr Winter became aggressive and raised his voice. He said that in the history of the mine no one had ever resigned from the union and stayed at work. They had resigned, gone elsewhere or retired. Mr Winter said, "We don't want you here. I can't do anything for you unless you are in the union". Mr Cramond felt uncomfortable and upset and had tears in his eyes. He felt that his job was in jeopardy, so he decided to rejoin the union. Mr Cramond asked where the papers were for him to rejoin. Mr Winter stated that he did not have the papers with him, but would speak to Mr Low and get back to Mr Cramond. Mr Cramond said that people on his crew were ignoring him. Mr Winter said, "You'll be getting more of that. Get used to it". Mr Winter then rang someone on his mobile phone. Afterwards he said that Mr Cramond would have to write letters apologising to the union and stand up in front of each of the crews at the monthly meeting and apologise for resigning as a member of the applicant. Mr Cramond said it was the applicant who should be apologising to him. Mr Winter said that would not happen. Mr Cramond said that Mr Winter should forget the paperwork. At approximately 9.30 pm Mr Cramond met Mr Winter in the breezeway. Mr Cramond said, "Did you say that I am not wanted here?" Mr Winter immediately became agitated and aggressive. He said, "I know where you're going with this…What I said is that in the history of the union no one has resigned without retiring or going to another job". Mr Jamie Bray (Mr Cramond's supervisor) took Mr Cramond home.

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District Court judgment 42 On 24 June 2011 McGill DCJ dismissed Mr Adams' defamation action against Mr Cramond in the District Court of Queensland. During the course of the judgment his Honour made the following comments: Credibility [31] There were a number of features of the plaintiff's evidence that I thought were unsatisfactory and which were damaging to his credibility. He spoke with apparent pride of the existence of 100% union membership for a long time at that site (p 11), and that he was passionate about the union (p 53), but claimed that he did not care if a particular person (such as the defendant) was a union member or had resigned from the union. Those two states of mind do not readily co-exist. He gave as his motivation for speaking to the defendant to find out what his position was in relation to the housing agreement, but at another point he said that he was concerned to find out whether he was still a member (p 94), which presumably meant whether he had rejoined the union, or was going to. He referred to the meeting with Mr Low as producing some indication that the defendant may rejoin, as explaining the approach on 21 August: p 95. Given that he maintained that, while the defendant was not a member of the union, he and the union could do nothing for him in relation to the housing agreement, and he said he told the defendant this that day (p 87), there was no point in finding out what the defendant's position was in relation to the housing agreement unless he had rejoined or would rejoin the union. There was also the consideration that he had said at one stage (p 11) that one of his roles as the vice president, indeed the second one he mentioned, was keeping an eye on the levels of people in the union. It would be consistent with that for his role to include attempting to persuade people to join the union where something of that nature was required, but he denied that: p 83, p 92. [32] There were other things that he said which seemed odd. He gave as an explanation for his not placing significance on Mr Coleman's statement that he did not believe there was much substance in the allegations that had been made against him, that you learn to take very little notice of statements from the human resources department: p 48. But this was really a statement by Mr Coleman against interest, and I can think of no reason why in the circumstances Mr Coleman would have made a statement of this nature unless it were true. The plaintiff said he did in fact speak to a company official about the defendant's position under the new agreement, after the incident on 21 August (p 72-3, p 80), and his statement, Exhibit 8, refers to this and says that he told the defendant what the official said, but the plaintiff gave no evidence of any later meeting with the defendant for this purpose, and could not explain this inconsistency: p 79. There was also some inconsistency about whether he had assistance in drafting Exhibit 8: p99, p 3. [33] The plaintiff's reaction to cross-examining counsel was also a little unusual. The cross-examination was thorough and at times persistent, but did not strike me as unusually aggressive. Yet on more than one occasion there was a notable reaction towards counsel for the defendant. For example, on p 61 the plaintiff said that he had taken offence at cross-examining counsel's posture, which did not at the time strike me as being unusual in any way, and at another point he addressed cross-examining counsel by his Christian name, which I do not recall ever having heard a witness do before. My impression of the demeanour of the plaintiff in the witness box, particularly during cross-examination, was that there was a touch of arrogance about him. [34] I should add that the plaintiff is a solidly built man with strong arms and a face which in the witness box appeared to fall naturally into a frown. It occurred to me that anyone talking to him in a conversation which was not in a friendly context could easily see him as hostile and intimidating, particularly if his voice were raised and he were waving his arms around. Overall my assessment of the plaintiff's credibility in the witness box was not favourable. [35] On the other hand, I was favourably impressed by the defendant's credibility. He seemed to me to give his evidence in quite a genuine way. He did at times become obviously overcome in the witness box, apparently by the unpleasantness of the recollection, in a way which struck me as genuine: p 78, p 85. In other respects he made reasonable concessions under cross-examination, significantly about whether he had said the things that were recorded in the crucial file note. Overall I was favourably impressed by the defendant's demeanour in the witness box and he did strike me as a reliable witness. In view of my assessments of their credibility and in the light of the other matters referred to earlier, I prefer the evidence of the defendant to the evidence of the plaintiff as to what happened in the incident between them. [36] The same applied broadly speaking to the other defence witnesses, though I was conscious of the fact that they were giving evidence about things which might not at the time have seemed to them as important as they did to the defendant. I thought that at times their evidence was perhaps not entirely reliable as to matters of detail, but I accept that their evidence was reliable in relation to the more important features of it. I think that the other defence witnesses were all honest. With regard to the plaintiff's other witnesses, there was nothing in their demeanour which particularly reflected adversely on their credibility, though it will be apparent from my analysis of the content of their evidence that I do not regard Mr Winter's evidence as reliable. As well, his evidence that he spoke to the defendant as he wanted to find out if he could help him (p 37, p 51) was inconsistent with his position, as expressed at the time, that he could not help the defendant if he was not in the union: p 53. He also agreed he was passionate about the union (p 45, p 54) but claimed that the defendant's resignation did not worry him one way or the other, and denied that the purpose of the conversation was to try to get him to rejoin: p 51; but see p 58. I prefer and accept the evidence of the defendant as to what passed between him and Mr Winter. Given that I otherwise accept the evidence of the defendant, I also prefer the defendant's evidence to the evidence of Mr Low where they are inconsistent. The remaining plaintiff's witness, Mr Leggett, said nothing of significance, so I need say nothing about his credibility. What imputations are proved? … [45] I accept that the plaintiff was on this occasion standing quite close the defendant, was waving his arms around, and was speaking and behaving quite aggressively towards him, and that that physical behaviour of the plaintiff did threaten the defendant. I do not consider that in order to show that the imputation was substantially true it is necessary for the defendant to show that there was an express threat of physical harm, or that there was an actual attempt on that occasion to cause physical harm to the defendant. What matters is whether on the occasion in question the plaintiff's behaviour in fact physically threatened the defendant. I find on the evidence of the defendant and Mr Eastley that it did. Accordingly the defence of justification is made out in respect of the only imputation relied on which was in fact conveyed by the words published. If follows that the action fails… (Footnotes omitted.)

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Mr Adams 47 On 28 July 2011 a meeting was held attended by Mr Craig, Mr Adams, Mr Sean Milfull (the mining manager) and Ms Jodie Dubois of human resources. 48 At the meeting, Mr Craig handed Mr Adams a letter and explained that he was required to show cause prior to 4 August 2011 why disciplinary action (which could include the termination of his employment) should not be taken against him. 49 The letter read as follows: Confidential Your employment at Peak Downs On 24 June 2011 Judge McGill delivered judgment in the matter of Adams v Cramond (D2188/09) in the District Court of Queensland (the judgment) (copy attached). BMA has reviewed this judgment. This letter relates to findings by Judge McGill about your conduct in an incident on 21 August 2008 involving another employee, Robert Cramond (Incident). BMA accepts and adopts the findings of the Court on the matters relating to your conduct as outlined in the judgment. Your conduct I am now considering taking disciplinary action against you in relation to your conduct in the Incident. Your conduct in the Incident: 1. Failed to meet the standards of conduct that BMA expects of employees; 2. Breached BMA's Workplace Conduct policy (as in force at the time of the Incident and as in force now); and 3. Was inconsistent with the BMA Charter values. I require you to "show cause" (in writing) as to why disciplinary action (which may include the termination of your employment) should not be taken against you for the reasons outlined above. Judge McGill's description of the Incident The Judge's description of and findings into the Incident are set out in the judgment. In particular, we refer you to paragraphs 11-17, 29-35 and 45. The Judge outlined your version of events at paragraphs 11-12 and Mr Cramond's version of events at 13-15, as well as the evidence of a witness, Mr Eastley, at 16-17. At paragraph 13, the Judge accepted Mr Cramond's evidence that: "… The plaintiff [Adams] appeared to be getting angry and agitated. The defendant [Cramond] said the plaintiff [Adams] said that he could not "do anything for you because you're not a union member", and was starting to talk louder and getting close to him. The defendant [Cramond] felt that his space was being invaded; he though the plaintiff [Adams] was very aggressive at that stage. He said that the plaintiff [Adams] had said that the union had got him his job, which the defendant [Cramond] disputed. The defendant [Cramond] said that in substance the plaintiff [Adams] had said that if he did not join the union it was going to be very, very hard for him, things would come down heavy on him." The Judge also accepted Mr Cramond's evidence at paragraph 14 that: When asked to describe the plaintiff's [Adams'] physical appearance during the conversation, he [Cramond] said that he felt as though he was being stood over: "He [Adams] was up close. His body language, I felt, was very, very aggressive, and I felt that if I didn't get out of there he'd almost - I felt threatened, and I didn't like the way that I'd been treated and spoken to." When asked what he though the threat involved, he said: "I was scared of getting hurt." Judge McGill's findings The Judge considered the credibility of your evidence, as well as the evidence of Mr Cramond and the witnesses in the case. The Judge's assessment of your credibility in the witness box was not favourable. In particular, we refer to paragraphs 31-34. His Honour found features of your evidence unsatisfactory and damaging to your credibility. At paragraph 35, the Judge preferred Mr Cramond's evidence over yours as to what happened in the Incident. At paragraph 45, the Judge reached the conclusion that Mr Cramond's version of the Incident should be accepted: "I accept that the plaintiff [Adams] was on this occasion standing quite close to the defendant [Cramond], was waving his arms around, and was speaking and behaving aggressively towards him, and that that physical behaviour of the plaintiff [Adams] did threaten the defendant [Cramond]." This represents a finding by a District Court that you: • Spoke in an aggressive manner to Mr Cramond; • Displayed aggressive behaviour towards him; and • Physically threatened him. Reliance on the Court's findings Mr Cramond has previously made complaints about you. BMA does not intend to revisit those complaints. BMA solely relies on the evidence, the findings of fact and the conclusions set out in the judgment. We note that the Judge in this case has had the benefit of a full factual inquiry into this matter, including hearing sworn evidence from witnesses, cross examination of those witnesses and reviewing documentary evidence. As outlined above, BMA accepts and relies upon the findings of the Court. Breaches of the BMA Workplace Conduct Policy BMA is committed to providing a workplace free of inappropriate workplace conduct. The evidence outlined in the judgment demonstrates that your conduct breached the BMA Workplace Conduct Policy (assessed against both the version in place as at 21 August 2008 and the current version). 1 Specifically, your conduct towards Cramond, in the presence of other employees, by: • standing close to him; • waving your arms around as you spoke; • both speaking and behaving aggressively towards him; and • physically threatening him constitutes harassment in breach of the Workplace Conduct Policy. 2 Further, your conduct outlined above threatened and intimidated Mr Cramond, creating a potential risk to his health and safety. Such conduct constitutes bullying in breach of the Workplace Conduct Policy. 3 Additionally, your conduct in this Incident does not accord with BMA's expectation that each employee will treat others in the workplace with courtesy, dignity and respect. Enclosed, for your ease of reference is a copy of the BMA Workplace Conduct Policy (the versions in force in 2008 and now). Failure to meet expected standards of conduct By behaving in an aggressive manner towards Mr Cramond and physically threatening him, you have failed to comply with the conduct that BMA expects of all its employees. In particular, you have failed to comply with the BMA Charter values of: • Respect for each other; and • Safety: an overriding commitment to health and safety, helping to ensure that each employee ends each day safely. Enclosed, for your ease of reference is a copy of the BMA Charter. Your response to the show cause letter I have considered the Just Culture Decision Tree, the surrounding circumstances (including the date of the Incident) and the seriousness of the misconduct attributed to you by the Judge's judgment. You are required to provide your written response to me by 5pm on Thursday 4 August 2011 - 7 days from the date of this letter. BMA will consider any response on Friday 5 August 2011 and will then come to a decision about any disciplinary action. You will be stood down on full pay until the conclusion of this process. BMA's Employee Assistance Program (EAP) information is enclosed for your reference and use. 50 On 4 August 2011, Mr Stephen Smyth, Queensland district president of the applicant, responded to Mr Craig's show cause letter on behalf of Mr Adams. In summary, the response was that: Mr Adams denied the allegations in the show cause letter and disputed the correctness of the factual and legal views expressed by McGill DCJ. It was impermissible for BHP to have regard to or rely upon McGill DCJ's decision as a basis for disciplinary action against Mr Adams because: o the civil judgment was only binding between the parties to the litigation; o as a non-party to the proceedings, the respondent was not entitled to use the reasons as proof or evidence that certain events occurred or in the manner proposed by the respondent. McGill DCJ was called to decide whether Mr Cramond had defamed Mr Adams within the meaning of the Defamation Act 2005 (Qld). His Honour was not required to assess whether Mr Adams had engaged in misconduct in the course of his employment or whether his conduct warranted dismissal. After Mr Cramond made his complaint to Human Resources on 26 August 2008, the respondent had investigated the complaint thoroughly and decided on 9 January 2009 that Mr Cramond's allegations could not be substantiated. No new material had come to light since that decision. As the respondent had considered the matter previously and formed the view that Mr Adams did not engage in the conduct it was not now open to the respondent to revisit the matter. If, contrary to these views, the respondent was determined to rely upon the finding made by his Honour at [45], it had to take the following matters into account. The conduct referred to in [45] was witnessed by Mr Jamie Eastley, a supervisor employed by the respondent. Mr Eastley did not immediately report the conduct he witnessed, but only raised the matter when he became aware of a further complaint made by Mr Cramond against another employee of the respondent. It is difficult to see how the conduct of Mr Adams could be said to be so serious as to warrant the termination of his employment in circumstances where Mr Eastley did not feel the need to report that conduct. In any event, the highest McGill DCJ's finding against Mr Adams could be put is that during the discussion with Mr Cramond, Mr Adams spoke aggressively and waved his arms about in the air. His Honour made no findings about what it was that Mr Adams is alleged to have said that was aggressive, whether Mr Adams intended to threaten Mr Cramond or whether a reasonable person would have expected that Mr Cramond would feel threatened. These were essential considerations to be taken into account in determining whether Mr Adams had engaged in misconduct. This was another example of the difficulties faced when attempting to rely on his Honour's findings in a different context to that in which they were made. Mr Adams had been employed by the respondent for approximately fourteen years. During that time there had been no complaints of misconduct against Mr Adams other than Mr Cramond's complaint. It was three years since the alleged conduct with Mr Cramond took place, and since that time Mr Adams had not engaged in any form of misconduct. Given Mr Adams' lengthy service and good record, it would be unduly harsh for the respondent to terminate his employment as a consequence of the matters which allegedly took place in 2008. The purported disciplinary action now taken against Mr Adams clearly constituted adverse action against Mr Adams due to his membership of the applicant and activities associated with his role as an office holder in the applicant. Mr Adams participated in the conversation with Mr Cramond in his capacity as vice president of the Peak Downs Lodge of the applicant. This conversation occurred after Mr Adams finished his shift and prior to Mr Cramond starting his shift. The discussion did not relate to work matters as it related to the applicant's position in respect of the 2008 Housing Agreement and whether the applicant would advocate for Mr Cramond. Mr Adams said that the applicant would not assist Mr Cramond unless he was a member of the applicant.

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Mr Winter 51 On 29 July 2011 a meeting was held attended by Mr Craig, Mr Winter, Mr Milfull, Ms Dubois and Mr Terry Low. Mr Low attended as Mr Winter's representative. 52 Mr Craig gave Mr Winter a letter and explained that it required him to show cause prior to 5 August 2011 why disciplinary action (which could include the termination of his employment) should not be taken against him. 53 The letter stated as follows: Confidential Your employment at Peak Downs On 24 June 2011 Judge McGill delivered judgment in the matter of Adams v Cramond (D2188/09) in the District Court of Queensland (the judgment) (copy attached). BMA has reviewed this judgment. This letter relates to findings by Judge McGill about your conduct in an incident on 23 August 2008 involving another employee, Robert Cramond (Incident). BMA accepts and adopts the findings of the Court on the matters relating to your conduct as outlined in the judgment. Your conduct I am now considering taking disciplinary action against you in relation to your conduct in the Incident. Your conduct in the Incident: 1. Failed to meet the standards of conduct that BMA expects of employees; 2. Breached BMA's Workplace Conduct policy (as in force at the time of the Incident and as in force now); and 3. Was inconsistent with the BMA Charter values. I require you to "show cause" (in writing) as to why disciplinary action (which may include the termination of your employment) should not be taken against you for the reasons outlined above. Judge McGill's description of the Incident The Judge's description of and findings into the Incident are set out in the judgment. In particular, we refer you to paragraphs 18-26 and 36. The Judge outlined your version of events at paragraphs 18-20 and Mr Cramond's version of events at 21-23, as well as the evidence of a witness, Mr Bray, at paragraphs 24-26. At paragraph 21, the Judge accepted Mr Cramond's evidence that: "… Mr Winter had said that no-one in the history of the mine had resigned from the union and stayed at work…Mr Winter's response was to tell him that he was not wanted at that mine, that he had told Mr Winter that he was not happy with the way he was being treated by the union members, and he was told in response to "get used to it because it's going to get a lot worse". The Judge also accepted Mr Cramond's evidence at paragraph 22 that: "At that stage the defendant [Cramond] was (he said) feeling very intimidated by what was happening to him, and said that he was willing to sign up again with the union and asked Mr Winter to get the paperwork to him. In response he said Mr Winter said that he would get on the phone and get someone to bring the paperwork out for him to sign up. He said Mr Winter made a phone call immediately, and then told him that it was not as easy as that, that there would be a lot of letters he would have to write to different people, a letter of apology to the union, to the members at the mine site, and stand and apologise in front of all the crews at the monthly meetings for his actions in resigning." Judge McGill's findings The Judge also considered the credibility of your evidence, as well as the evidence of Mr Cramond and the witnesses in the case. The Judge did not regard your evidence as reliable. In particular, we refer you to paragraphs 25-26 and 36. His Honour found that your evidence was inconsistent and did not reflect well on your credibility. At paragraph 36, the Judge preferred and accepted Mr Cramond's evidence over yours as to what happened in the Incident. This represents a finding by a District Court that you: • displayed angry, aggressive behaviour towards Mr Cramond due to his union membership status; and • made him feel intimidated and upset. Reliance on the Court's findings BMA solely relies on the evidence, the findings of fact and the conclusions set out in the judgment. We note that the Judge in this case has had the benefit of a full factual inquiry into this matter, including hearing sworn evidence from witnesses, cross examination of those witnesses and reviewing documentary evidence. As outlined above, BMA accepts and relies upon the findings of the Court. Breaches of the BMA Workplace Conduct Policy BMA is committed to providing a workplace free of inappropriate workplace conduct. The evidence outlined in the judgment demonstrates that your conduct breached the BMA Workplace Conduct Policy (assessed against both the version in place as at 21 August 2008 and the current version). Your conduct is outlined at paragraphs 21-26 and 36 of the judgment. 1 Specifically, your conduct towards Cramond, in: • displaying angry, aggressive behaviour towards him due to his union membership status; and • intimidating and upsetting him constitutes harassment in breach of the Workplace Conduct Policy. 2 Further, by intimidating Mr Cramond, your conduct, as outlined above, created a risk to his health and safety. Such conduct constitutes bullying in breach of the Workplace Conduct Policy. 3 Additionally, your conduct in this Incident does not accord with BMA's expectation that each employee will treat others in the workplace with courtesy, dignity and respect. Enclosed, for your ease of reference is a copy of the BMA Workplace Conduct Policy (the versions in force in 2008 and now). Failure to meet expected standards of conduct By displaying aggressive behaviour towards Mr Cramond and intimidating him, you have failed to comply with the conduct that BMA expects of all its employees. In particular, you have failed to comply with the BMA Charter values of: • Respect for each other; and • Safety: an overriding commitment to health and safety, helping to ensure that each employee ends each day safely. Enclosed, for your ease of reference is a copy of the BMA Charter. Your response to the show cause letter I have considered the Just Culture Decision Tree, the surrounding circumstances (including the date of the Incident) and the seriousness of the misconduct attributed to you by the Judge's judgment. You are required to provide your written response to me by 5pm on Friday 5 August 2011 - 7 days from the date of this letter. BMA will consider any response on Monday 8 August 2011 and will then come to a decision about any disciplinary action. You will be stood down on full pay until the conclusion of this process. BMA's Employee Assistance Program (EAP) information is enclosed for your reference and use. 54 On 4 August 2011 Mr Smyth also responded to Mr Craig's show cause letter on behalf of Mr Winter. The response was in similar terms to that sent by Mr Smyth on behalf of Mr Adams, including denying allegations in the show cause letter. In particular Mr Smyth stated that: Mr Winter had been a mere witness to the District Court proceedings between Mr Adams and Mr Cramond, and as such had been unable to make submissions to McGill DCJ concerning relevant events. The issue in the proceedings between Mr Adams and Mr Cramond was whether Mr Cramond had defamed Mr Adams, not whether Mr Winter had engaged in misconduct in the course of his employment or whether his conduct warranted dismissal. His Honour made no findings of fact as to Mr Winter's conduct. This is because he was not required to do so to resolve the matter before him regarding Mr Cramond's alleged defamatory conduct. Absent any findings of fact against Mr Winter there was no basis for the respondent to take disciplinary action against Mr Winter. Given the time which had elapsed since the allegations were first raised and investigated by the respondent, it had waived its right to take any action in respect of the matters set out in the show cause letter. In any event, from [26] of the judgment his Honour considered that it was Mr Winter's response to Mr Cramond's request to rejoin the applicant that distressed Mr Cramond. His Honour made no finding that Mr Winter set out to intimidate or upset Mr Cramond, or that a reasonable person would have expected Mr Cramond to be intimidated. These were essential considerations to be taken into account in determining whether Mr Winter had engaged in misconduct in respect of his employment and the seriousness of any misconduct. Mr Winter had been employed by the respondent for approximately six years. During that time there had been no complaints of misconduct against Mr Winter other than Mr Cramond's complaint. Given Mr Winter's lengthy service and good record, it would be unduly harsh for the respondent to terminate his employment as a consequence of the matters that allegedly took place in 2008. 55 Mr Winter deposed in his affidavit affirmed 8 August 2011 that, aside from the allegations made by Mr Cramond, no allegations of misconduct had been made against him in his employment with the respondent (at para 67).

[22]

Relevant policies 56 In his affidavit affirmed 10 November 2011 Mr Craig deposed that, in deciding to terminate the employment of Mr Adams and Mr Winter, he had regard to (inter alia) the BMA Workplace Conduct Policy, the BMA Charter and the Just Culture Decision Tree. The BMA Workplace Conduct Policy in force in August 2008 was the BMA Workplace Conduct Policy 2003 ("Workplace Conduct Policy"). 57 The Workplace Conduct Policy stated, inter alia, that: BMA believes that each employee has a fundamental right to a work environment free from discrimination, harassment and victimisation or any other inappropriate workplace conduct. Each employee is expected to treat others in the workplace (at work and outside work) with courtesy, dignity and respect. BMA will not tolerate any form of inappropriate workplace conduct, whether unlawful or not and disciplinary action will be taken against any employee or agent who breached this policy. 58 The Workplace Conduct Policy also includes definitions and examples of harassment and workplace bullying. 59 The BMA Charter dated May 2005 was in force during August 2008. The BMA Charter states that BMA values "respect for each other" and "an overriding commitment to heath [and] safety". 60 The Just Culture Decision Tree specifies guidelines which assist management in making fair and just decisions in relation to workplace conduct where there has been non-compliance with site rules. It is Appendix B to the BHP Coal Pty Ltd Workplace Agreement 2007. Mr Craig deposed that the purpose of the Just Culture Decision Tree is to recognise that when considering what action should be taken for a breach of the infringements of BMA's rules, a distinction should be drawn between an unintentional error by an employee trying to do the right thing (such as an honest mistake or lack of awareness of a rule), which may necessitate appropriate training, and deliberate non-compliance with known rules, which may warrant disciplinary action (affidavit of Brandon Kyle Craig affirmed 10 November 2011 at para 35).

[23]

Decision to terminate the employment of Mr Adams and Mr Winter 61 In his affidavit affirmed 10 November 2011 Mr Craig deposed that he carefully considered the letters received from Mr Smyth on 4 August 2011, but that he did not accept that the respondent should take no further action regarding the conduct of Mr Adams and Mr Winter because, in summary: 1. The letters did not include any response to the specifics of the incidents involving Mr Cramond. 2. The letters did not provide any information about the conduct that was the subject of the show cause letters. 3. There was nothing in the letters that indicated any remorse on the part of Mr Adams or Mr Winter regarding their conduct. 4. The relevant conduct had occurred between employees of the respondent while they were at the mine. 5. He considered that it was appropriate for him to decide each of the disciplinary matters on the basis of McGill DCJ's findings. 6. He did not consider it relevant that time had passed since the conduct occurred because, prior to the judgment being handed down, Mr Craig had not had McGill DCJ's findings of fact before him. 62 In relation to Mr Adams, Mr Craig deposed that he decided it was appropriate to terminate Mr Adams' employment with the respondent because, in summary: Mr Adams' conduct on 21 August 2008 amounted to harassment and workplace bullying within the meaning of the Workplace Conduct Policy. Mr Adams' behaviour was unwelcome, unwarranted and uninvited in that it had the likely effect of humiliating, offending or intimidating Mr Cramond. Mr Adams had threatened Mr Cramond that his life would become difficult unless he rejoined the applicant union. It was irrelevant that the threat was made in the context of membership of the applicant because such behaviour was unacceptable at the mine, regardless of the context. Mr Adams' behaviour should be classed as "deviant" under the just culture decision tree. It was apparent from the facts found by McGill DCJ that Mr Adams' conduct was intentional and deliberate. Mr Adams sought Mr Cramond out, called him outside the pre-start room at the mine and then proceeded to berate, threaten and intimidate him in circumstances in which Mr Adams would have known that the respondent did not tolerate that kind of behaviour. Mr Craig believed that Mr Adams' conduct could lead to the safety of individuals at the mine site being compromised, because it could distract employees who were operating equipment from performing their activities safely. 63 Mr Craig denied that he made the termination decision because of Mr Adams' position in the applicant or his engagement in industrial activity. 64 In relation to Mr Winter, Mr Craig deposed that he decided it was appropriate to terminate Mr Winter's employment with the respondent because, in summary: Mr Winter's conduct on 23 August 2008 amounted to harassment and workplace bullying within the meaning of the Workplace Conduct Policy. Mr Winter's behaviour was unwelcome, unwarranted and uninvited in that it had the likely effect of humiliating, offending or intimidating Mr Cramond. Mr Winter threatened Mr Cramond that his life would become difficult unless he rejoined the applicant union. It was irrelevant that the threat was made in the context of membership of the applicant because such behaviour was unacceptable at the mine, regardless of the context. Mr Winter's behaviour should be classed as "deviant" under the just culture decision tree. It was apparent from the facts found by McGill DCJ that Mr Winter's conduct was intentional and deliberate. Mr Winter sought Mr Cramond out, called him outside the pre-start room at the mine and then proceeded to berate, threaten and intimidate him in circumstances in which Mr Winter would have known that the respondent did not tolerate that kind of behaviour. Mr Craig believed that Mr Winter's conduct could lead to the safety of individuals at the mine site being compromised, because it could distract employees who are operating equipment from performing their activities safely. 65 I note that the Mr Craig's reasons for termination of both men were very similar in terms. 66 Mr Craig deposed that he notified Mr Jon Evans, head of production, and Mr Stephen Dumble, President of BMA, of his intention to terminate the employment of Mr Adams and Mr Winter, and that neither Mr Dumble nor Mr Evans raised concerns about Mr Craig's decision. 67 Mr Craig notified Mr Adams and Mr Winter on 5 August 2011 that their employment with the respondent was terminated.

[27]

In relation to Mr Winter Mr Winter acted in his capacity as an officer of the applicant: o for the purposes of s 346(a) and s 347(b)(v) of the FWA when he interacted with Mr Cramond; o for the purposes of s 346(a) and s 347(b)(ii), (iii) and (v) pursuant to his involvement in bargaining for a new enterprise agreement in 2011. The respondent contravened s 346 of the FWA in that it dismissed Mr Winter from his employment because he was a member and/or officer of an industrial association within the meaning of s 346(a) of the FWA, and/or because he engaged in industrial activity within the meaning of s 346(b) and s 347(b)(ii),(iii) and (v) of the FWA. Alternatively, the respondent contravened s 340 of the FWA in that it dismissed Mr Winter because he exercised a workplace right within the meaning of s 341(2)(c) of the FWA by taking, and/or proposing to take, protected industrial action. 69 The respondent, in its amended defence filed 30 November 2011, in summary: Pleaded that the employment of Mr Adams and Mr Winter was terminated for reasons of workplace misconduct. Pleaded that the decisions to terminate Mr Adams and Mr Winter were made by Mr Craig solely for the reasons that they: o failed to meet the standards of conduct the respondent expected of employees; o breached the BMA Workplace Conduct Policy; and o engaged in conduct that was inconsistent with the values set out in the BMA Charter. Claimed the version of the incidents involving Mr Cramond, Mr Adams and Mr Winter as deposed by Mr Cramond. In relation to events involving Father Coleman and Ms Fiona Stokes - denied that it had conducted an "inquiry" into Mr Cramond's complaints. Claimed that the result of the investigation into the allegations made by Mr Cramond was that the respondent made a determination that there was insufficient evidence to support those allegations. Denied that Mr Adams had ever been a member of the SBU. Denied that Mr Adams had been involved in any of the bargaining meetings involving the SBU. Denied that Mr Adams and Mr Winter took part in all of the industrial action pleaded by the applicant between 18 June 2011 and 19 August 2011. Denied contraventions of the FWA.

[33]

Mr Cramond's state of mind at the time of the incidents 79 First, it is clear that both Mr Adams and Mr Winter approached Mr Cramond with a view to persuading and assisting Mr Cramond to rejoin the applicant union. That they should have approached Mr Cramond to try to persuade him to rejoin the applicant is not surprising in light of their respective roles in the applicant union at that time, and the prevalence of membership of the applicant union and other unions among workers at the mine. (I note, for example, Mr Winter's evidence that, in his view, the mine was "a union pit", and Mr Adams' evidence at transcript 7 February 2012 p 11 ll 25-28.) No sinister implication can be drawn from the fact that Mr Adams and Mr Winter separately approached Mr Cramond for that purpose - indeed it would have been surprising had no steps been taken by the applicant (through Mr Adams and Mr Winter or otherwise) to encourage Mr Cramond to become a member of the applicant once again. 80 However it is equally clear that at the time Mr Cramond was deeply upset by what he perceived to be an abandonment by the union of a policy which was in his personal interests, and both angry with and offended by the applicant union for its view towards and apparent disregard of circumstances such as his. Mr Cramond denied during cross-examination that he was angered (transcript 8 February 2012 p 119 l 35) but I do not accept this. I note that Mr Cramond chose to reside in his caravan in a caravan park, was financially advantaged by the terms of the 2004 Housing Policy because the accommodation subsidy of $267.00 per week under that Policy covered his caravan rental payments and living expenses, and expected to be financially worse off under the terms of the renegotiated Housing Policy. Mr Cramond's anger and distress with the applicant arising from the change in the Housing Policy is clear from his evidence. I note, for example, statements in his affidavit of 7 November 2011 including: "I felt it should not be the Union who dictated where my wife and I lived…" (at para 40). 46. … I was extremely frustrated with the Union's approach to the negotiation of the 2008 Housing Policy. I felt as though the Union had let me down, simply because I chose to live in a caravan park. I believed the Union had given away something it had previously fought hard to get from BHPC. 47. I had contemplated resigning my membership of the Union in February 2008, when the 2008 Housing Policy was finalised, but had not taken any steps to do so. 48. However, when I found out my caravan park fees had increased, and I would not be covered, I decided I would, on principle, resign my membership of the Union. 49. On or about 1 August 2008 I went to the Lodge's office and spoke with Clint (I do not know Clint's last name). I told Clint I was upset the Union had given away my accommodation subsidy in the 2008 Housing Policy re-negotiations and now my caravan park fees had increased from $94.95 to $100 per week (and I would not be covered), I wanted to resign my membership of the Union. I gave Clint a handwritten letter I had prepared, confirming my resignation… 50. After listening to what I had to say, Clint said to me: Clint: You were profiteering. I also recall Clint said I was leaving the union for $6. 51. I felt angry when Clint said I had been profiteering. I considered it was my business what I did with the additional $172 I used to receive under the 2004 Housing Policy, and that it wasn't up to the Union to decide whether or not I received it. 81 I also note Mr Cramond's evidence at the hearing, for example, that: he was affronted (transcript 8 February 2012 p 119 ll 42-43); he had made a diary note that he was "not happy" with the union (transcript 9 February 2012 p 164 ll 35); he was offended and "angry inside" at the suggestion that he was profiteering from the union subsidy (transcript 8 February 2012 p 129 ll 27-31, 9 February 2012 p 196 ll 35-42). 82 Mr Cramond's distress at the change in the Housing Policy so far as it affected him was also clear from evidence given by Father Coleman who investigated the incidents at the time. In examination in chief, Father Coleman said in relation to statements by Mr Cramond at the interview between Father Coleman and Mr Cramond that: Before we go on to any more detail, approximately how much of the hour, Father, do you think was devoted by Mr Cramond talking about and trying to explain the housing subsidy or I suppose his complaint about what had been done with his housing grant?---I think it was probably about half the time was spent actually explaining to me about why he left the union, which was about the housing subsidy issue. So in essence justifying his position?---Yes. And the remaining half dealt with the discussions concerning what passed between him and Mr Adams and him and Mr Winter?---Yes, and also then about that he was a bit concerned about his future at the site in terms of other people. (transcript 7 February 2012 p 48 ll 20-31) 83 I consider it likely that Mr Cramond's views of his interactions with Mr Adams and Mr Winter - as representatives of the applicant seeking to persuade him to rejoin after he had resigned in anger and distress - was coloured by his anger and distress with the applicant and the change in the Housing Policy.

[35]

Contemporaneous evidence of Father Coleman 87 Third, I found Father Coleman, who investigated both incidents, to be a credible witness, and a witness whose evidence should be given substantial weight. In particular I note Father Coleman's evidence that: Mr Cramond was particularly critical of the applicant union because of its views towards caravan occupiers and the Housing Policy. For example: I want you to draw a distinction between the union on the one hand and individuals such as Mr Adams and Mr Winter?---Yes. Was he critical of the union?---Yes, yes. Did he devote much time to expressing that criticism?---Yes, that was very much part - the first half of the discussion when he was talking about the rental subsidies it was certainly the union generally or as a whole that was at fault. He felt very let down by them. (transcript 7 February 2012 p 49 ll 10-18) At no time during Father Coleman's interview with Mr Cramond did Mr Cramond allege that either Mr Adams or Mr Winter had threatened him. Specifically, I note the following exchange between Mr Stewart SC and Father Coleman concerning the incident involving Mr Adams: All right. Did Mr Adams - I beg your pardon - Mr Cramond tell you that Mr Adams was threatening towards him during this discussion?---No. Did he tell you he was physically gesturing at him in an aggressive way?---No. Did he tell you that he was speaking in a threatening or aggressive way?---No. If he had told you any of those things would you have regarded them as significant?---Yes. Would you have recorded them in your note?---I would have, and Fiona probably would have. (transcript 7 February 2012 p 52 ll 10-21) Further, I note Father Coleman's evidence concerning statements given by Mr Cramond in relation to Mr Winter: Again, had he told [sic] that Mr Winter had physically threatened him?---No. Would you have made a note of that?---Yes. If he had told you that Mr Winter was aggressive in the way he dealt with him, would you have made a note of that?---Yes. (transcript 7 February 2012 p 53 ll 1-6) Mr Jim Eastley had simply told Father Coleman that he had seen Mr Cramond and Mr Adams "talking" (transcript 7 February 2012 p 54 ll 1-2, p 56 l 42), notwithstanding that Mr Eastley later changed his version of events (transcript 7 February 2012 p 56 ll 38-43, p 57 ll 14-20). There was no evidence that he could find that would say categorically that the events had happened as Mr Cramond had suggested (transcript 7 February 2012 p 55 ll 31-33).

[37]

Mr Cramond 89 Fifth, whilst I do not consider that Mr Cramond was an untruthful witness, I am of the view that he is prone to exaggeration where it suits him. I consider further that this exaggeration flows from him being a person who, on the evidence before the Court, appears to be relatively emotionally thin-skinned and nervous, somewhat inflexible, prone to hypersensitivity when placed in an environment which is uncomfortable to him, and prone to emotional upset and anger when he feels intimidated. Facts upon which I base these conclusions include: The fact that during the hearing Mr Cramond repeatedly referred to the alleged statement by Mr Adams and Mr Winter that the union had "got (him) (his) job" (transcript 8 February 2012 p 115 ll 19-22, p 116 ll 6-7, p 135 ll 7-10, 9 February 2012 p 180 ll 30-31) although this was denied by Mr Adams (transcript 7 February 2012 p 23 ll 1-3). It is clear that Mr Cramond strongly resented any suggestion to this effect, to the extent that he also raised this issue with Father Coleman (transcript 7 February 2012 p 52 ll 31-36). In my view, however, the suggestion posed by Mr Stewart SC to Mr Cramond during cross-examination is the more likely explanation for any such statement made by either Mr Adams or Mr Winter - namely the view that the good terms and conditions that Mr Cramond enjoyed at the mine were (arguably) procured by the applicant union. Mr Cramond's vehement rejection of such a suggestion and his insistence that Mr Adams at least meant that the union interceded with the respondent to employ Mr Cramond suggests, in my view, inflexibility on the part of Mr Cramond. The undisputed evidence that Mr Cramond became physically distressed following his discussions with Mr Adams and Mr Winter, to the point where he left work. The evidence that despite complaints by Mr Cramond of 128 incidents of harassment at the mine, only one of those incidents was able to be substantiated by an external investigator from the Queensland bar organised by the respondent. While it is clear that Mr Cramond has experienced genuine pain at what he perceives to be his treatment by his co-workers, the results of the external investigation suggest that, at the very least, Mr Cramond was very sensitive to actual or perceived slights against him in the workplace, and ready to elevate such slights to the level of formal complaint to the respondent. Mr Cramond's evidence that Mr Adams was "over 6 foot" in height whereas, as was clear at the hearing, Mr Adams is not. I noted from my observations of Mr Cramond however that he was a man of reasonably slight build compared, for example, with Mr Adams, and to that extent I consider it likely that Mr Cramond felt physically intimidated by Mr Adams. Mr Cramond's evidence that Mr Winter had told him he would be forced to write letters of apology and otherwise apologise publicly to be permitted to rejoin the applicant. I note that such a requirement by the applicant of Mr Cramond, if true, would be both petty and ludicrous conduct on the part of the applicant, however there is no other evidence to support this allegation. In particular it does not appear that Mr Cramond mentioned this alleged requirement to Father Coleman. There is, however, evidence that Mr Cramond told Mr Winter that he - Mr Cramond - wanted an apology from the applicant, and that Mr Cramond told Ms Fiona Stokes that he would only rejoin the applicant if the applicant wrote a letter apologising to him (exhibit 8(R)). It seems possible, therefore, that Mr Cramond's evidence about Mr Winter's alleged statement concerning the need for an apology is something which clearly evolved since his initial - and contemporaneous - interview by Father Coleman. The use of the expression "stand over" by Mr Cramond appears somewhat confused. "Stand over" is defined by the Macquarie Dictionary as meaning "to intimidate". In his interview with Father Coleman, it appeared that Mr Cramond referred to "stand over tactics" such that Father Coleman considered it appropriate to cause a further investigation to be undertaken by Ms Stokes to identify whether Mr Adams had been attempting to intimidate Mr Cramond (transcript 7 February 2012 p 51 ll 45-47, p 52 ll 1-2, p 53 ll 20-47, p 54 ll 1-15, p 58 ll 8-44, p 59 ll 26-27). During the course of cross-examination Mr Cramond gave evidence that he considered Mr Adams' statement that the union could do nothing for him in relation to the 2008 Housing Policy because he was not a member a "stand over tactic" (transcript p 178 ll 35-39). However in his affidavit Mr Cramond states that he thought Mr Adams was "physically trying to stand over me" (affidavit of Robert Charles Cramond sworn 7 November 2011 at para 67) and during cross-examination there was some evidence given by Mr Cramond that perhaps Mr Adams was standing on a step while speaking with him" (transcript 8 February 2012 p 138 ll 15-18). It is difficult to know what to make of this evidence. In my view, it should be considered as indicative of Mr Cramond's sensitivity when placed in an environment with which he was not comfortable. I am not satisfied that, during their conversations with Mr Cramond, Mr Adams and Mr Winter were making threats to Mr Cramond as to possible consequences to him should he fail to rejoin the applicant union. I do not accept that Mr Adams told Mr Cramond that he was "not wanted" unless he was a union member, and in relation to Mr Winter Mr Cramond acknowledged that he only interpreted Mr Winter's comments as saying that "the Union did not want (him) at the Mine unless (he) was a member" (affidavit of Robert Charles Cramond sworn 7 November 2011 at para 79). In fact, Mr Cramond was aware that there were "a lot of passionate unionists at the mine" (transcript 8 February 2012 p 113 ll 36-38). In my view it is more likely that Mr Adams and Mr Winter were simply trying to tell Mr Cramond that his resignation from the union could spark animosity towards him from unionists at the mine, irrespective whether such animosity was justified and appropriate. Further, the statement of Mr Adams that he could "not do anything for" Mr Cramond in relation to Mr Cramond's complaints about the Housing Policy because Mr Cramond was not a member of the union appears to have been a statement of fact rather than a threat. Again, I consider that this evidence suggests Mr Cramond's considerable sensitivity when engaging in a discussion with which he is not comfortable.

[38]

Mr Adams and Mr Winter 90 Finally I was impressed by the demeanour of Mr Adams and Mr Winter during the hearing. 91 Mr Adams was polite and responsive in the witness box, and appeared to be relatively quietly spoken. I am satisfied that Mr Adams did not wave his arms around as he spoke, did not speak or behave in an angry and aggressive manner with a raised voice towards Mr Cramond, and did not threaten Mr Cramond in any way. During cross-examination by Mr Kenzie SC, Mr Adams said: Anybody who knows me knows the - if I - the more angry I become, the quieter I become, not the opposite. (transcript 7 February 2012 p 30 ll 26-28) 92 There is no material before the Court to contradict this statement. 93 In relation to Mr Adams the evidence supports findings that: He is a committed unionist and wanted Mr Cramond to rejoin the applicant. He sought to persuade Mr Cramond to rejoin the applicant, which was the purpose of his interaction with Mr Cramond on 21 August 2008. Although he sought to persuade Mr Cramond to rejoin the applicant because of the desirability of retaining 100% union membership at the mine, I consider it likely that Mr Adams also sought to persuade Mr Cramond to rejoin because Mr Adams considered it probable that Mr Cramond's co-workers would ostracise him for resigning from the union. I consider that any statements of Mr Adams were in the nature of a warning, rather than a threat. He stood approximately one metre away from Mr Cramond during their discussion. He had completed a 12 hour overnight shift at the time he had the conversation with Mr Cramond and was tired (transcript 7 February 2012 p 42 ll 1-2). It is possible that, as a result, he may have been abrupt in his speech with Mr Cramond. This however does not constitute aggressive or angry behaviour. 94 Further, I formed the view that Mr Winter was a fairly mild-mannered and courteous person, who was committed to membership of the applicant union. As in the case of Mr Adams, I consider it likely that Mr Winter sought to persuade Mr Cramond to rejoin the applicant because of the desirability of mine workers being union members, and also because Mr Winter anticipated that Mr Cramond could be ostracised by co-workers if he was no longer a union member. I consider that Mr Winter's reference to the mine being "a union pit" in his conversation with Mr Cramond was a reference to the high level of union membership at the mine. I am satisfied that Mr Winter did not speak or behave in an angry and aggressive manner towards Mr Cramond, or threaten Mr Cramond in any way.

[40]

Industrial activity of Mr Adams and Mr Winter 97 In relation to Mr Adams, the applicant claimed, in summary, that: During the interaction with Mr Cramond, Mr Adams was acting in his capacity as an officer of the applicant for the purposes of s 346(a) of the FWA, and was representing their views, claims and interests for the purposes of s 347(b)(v) of the FWA. He was involved in bargaining for a new enterprise agreement during 2011 in his capacity as an officer of the applicant for the purposes of s 346(a), in addition to which this involvement was conduct falling within s 346(b) and s 347(b)(ii), (iii) and (v) of the FWA. 98 In relation to Mr Winter, the applicant claimed, in summary, that: During the interaction with Mr Cramond, Mr Winter was acting in his capacity as an officer of the applicant for the purposes of s 346(a) of the FWA, and was representing their views, claims and interests for the purposes of s 346(b) and s 347(b)(v) of the FWA. Mr Winter was involved in bargaining for a new enterprise agreement during 2011 in his capacity as an officer of the applicant for the purposes of s 346(a), in addition to which this involvement was conduct falling within s 346(b) and s 347(b)(ii), (iii) and (v) of the FWA. 99 The official positions of Mr Adams and Mr Winter at the time of their respective interactions with Mr Cramond are not in dispute. Mr Adams was the vice president of the Peak Downs Lodge of the applicant. I note from evidence of Father Coleman, which was not challenged, that this is a senior union official at the mine (transcript 7 February 2012 p 54 l 45). Mr Winter was the secretary/treasurer of the Peak Downs Lodge of the applicant. I note from Mr Winter's affidavit affirmed 8 August 2011 that this is an elected position, duties of which include recruiting new members and handling all applications for membership. In my view it is clear that when both Mr Adams and Mr Winter approached Mr Cramond: it was in their capacity as officers of the applicant for the purposes of s 346(a) of the FWA; and they were representing or advancing the views, claims or interests of the applicant within the meaning of s 347(b)(v). 100 I have found that, in their interactions with Mr Cramond, neither Mr Adams nor Mr Winter acted unlawfully. They have been the subject of adverse action by the respondent, and the onus of proof now shifts to the respondent in respect of the reason why adverse action was taken against them. 101 For completeness, however, I note that I am not persuaded that Mr Adams and Mr Winter were involved in bargaining for a new enterprise agreement during 2011 in their respective capacities as officers of the applicant. In my view weight must be given to the evidence of Mr Luke Cruwys, the senior advisor human resources at the mine, in particular the affidavit of Mr Cruwys affirmed 15 November 2011. I am satisfied that: neither Mr Adams nor Mr Winter were members of the SBU for the mine or otherwise engaged in enterprise bargaining in 2011; at its highest, Mr Adams' role was as a representative of the applicant at a site feedback meeting on 23 June 2011; Mr Adams was rostered to work on only one day identified by the applicant as when protected industrial action took place; Mr Winter was not engaged in any protected industrial action. 102 Accordingly, I accept the submission of Mr Kenzie SC for the respondent in relation to the industrial activity of Mr Adams and Mr Winter that they were merely "a blip on the radar". 103 I now turn to the issue of the reason for the respondent taking adverse action.

[41]

Reason for taking adverse action 104 The respondent claims that the person who made the decision to terminate the employment of Mr Adams and Mr Winter was the mine manager, Mr Brandon Craig. In my view this claim is supported by the evidence before the Court. While Mr Craig clearly consulted with Mr Stephen Smith of Freehills (transcript 10 February 2012 p 232 ll 7-8) and Mr Mark Stroppiana, human resources manager at the mine, Mr Craig's evidence is persuasive that he made the decision to terminate the employment of Mr Adams and Mr Winter. 105 Overall I considered that Mr Craig tried to be responsive as a witness although on occasion I considered that his evidence was somewhat evasive and obfuscating (I note, for example, transcript 10 February 2012 p 221 ll 1-29 and p 247 ll 15-39). He appeared to be quietly spoken, with a very precise approach to management and the need to maintain exact and proper compliance with company policies. 106 The respondent submits that Mr Craig's reason for the decisions to terminate Mr Adams and Mr Winter was that he considered their conduct towards Mr Cramond constituted misconduct of a nature which required their dismissal. Mr Craig has set out, in detail, his reasons for dismissing Mr Adams and Mr Winter. In summary, Mr Craig deposes that he so acted because he considered that Mr Adams and Mr Winter had intentionally harassed Mr Cramond, and in that respect their conduct was in breach of the respondent's workplace policies. 107 The concept of the "reason" for taking adverse action as contemplated by s 346 of the FWA was recently considered by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32. In that case French CJ and Crennan J observed: [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. (Emphasis added, footnotes omitted.) 108 Similarly, in answering the question whether a person has taken adverse action because of a proscribed reason for the purpose of s 346 of the FWA is to be answered by an "objective" or "subjective" test, Gummow and Hayne JJ concluded at [129]: Neither. The test is whether adverse action has been taken because of a proscribed reason. (cf Heydon J at [146]). 109 With these comments of the High Court in mind, and turning now to the facts of this case, I am not persuaded that Mr Craig's reason for the decisions to terminate Mr Adams and Mr Winter was solely that he considered their conduct towards Mr Cramond constituted misconduct of a nature which required their dismissal. 110 I accept that Mr Craig took into account the reasoning and decision of McGill DCJ in the District Court defamation proceedings, in particular his Honour's statements concerning Mr Adams and Mr Winter. However, I also consider Mr Craig acted as he did to dismiss Mr Adams and Mr Winter because they acted in the course of their respective roles as union officers to try to persuade Mr Cramond to rejoin the applicant union. This was a reason for his decision within the meaning of s 360 of the FWA and was made against a background of both on-going union activity which undoubtedly inconvenienced the respondent, and the committed support of Mr Cramond by the respondent in his litigation with Mr Adams. The conduct of Mr Adams and Mr Winter for which they were dismissed was conduct in the course of their duties as officers of the applicant union, within the meaning of s 346(a) and s 347(b)(v) of the FWA. 111 Accordingly, it follows that the respondent has not discharged the onus of proof that it has not taken adverse action against Mr Adams and Mr Winter for a reason prohibited by the FWA. 112 I so find for the following reasons.

[42]

Unexplained harsh treatment 113 First, even on the basis that Mr Craig assumed the correctness of Mr Cramond's version of the incidents involving Mr Adams and Mr Winter, the discipline meted out to Mr Adams and Mr Winter is inexplicably harsh when considered in the light of: the elapse of 3 years between the interactions between the two men and Mr Cramond, and the date of Mr Craig's decision; a comparison with the discipline meted out to another employee at the mine, Mr Paul McMah, only 4 months after the employment of Mr Adams and Mr Winter was terminated; and the contemporaneous investigation by the Human Resources staff of the respondent, which had found that Mr Cramond's complaints concerning Mr Adams and Mr Winter had no substance (an issue to which I will return shortly). 114 In relation to the elapse of 3 years I note Mr Craig's evidence during cross-examination as follows: Mr Craig, what about the fact that it had been two and a half years since the incidents involving Mr Adams and Mr Winter before you came to make your decision - sorry, three years? I shouldn't underplay this point. It's an important one. Three years during which time there had been no suggestion that they had had any contact with him or thought to affect him in any way. That must have been a very, very important feature for your consideration when you came to decide what penalty to impose?---Yes. And how can you justify terminating their employment in such circumstances?---Because the nature of the conduct, in my view, did not excuse them purely because time had elapsed since the conduct and the date of their termination. (transcript 10 February 2012 p 292 ll 37-47) 115 While Mr Craig's explanation appears superficially reasonable, in my view its credibility diminishes when considered in light of the absence of any other complaints concerning Mr Adams or Mr Winter either before or after the incidents in August 2008. This absence is inconsistent with Mr Adams or Mr Winter being a risk to the safety of individuals at the mine, as deposed by Mr Craig (affidavit of Brandon Kyle Craig affirmed 10 November 2011 at para 42). 116 Further, as Mr Craig conceded at the hearing, 4 months after Mr Craig's decision to terminate the employment of Mr Adams and Mr Winter a decision was made by Mr Ian Harris, manager maintenance at the mine, to issue a final written warning and 14 day suspension without pay to employee Mr Paul McMah, in circumstances where the respondent was satisfied that: Mr McMah had twice threatened another employee; Those threats took the form of Mr McMah: o verbally abusing the other employee by swearing, yelling and using an aggressive/angry tone towards him; o physically threatening the other employee by telling him (words to the effect) "I'll see you out in the car park"; o swearing at the employee and threatening to punch him. (cf exhibit 31(A) and exhibit 32(A)). 117 Mr Craig gave evidence that he would have endorsed Mr Harris' action (transcript 10 February 2012 p 291 ll 1-2). 118 The comparison between the conduct of Mr McMah on the one hand, and Mr Adams and Mr Winter on the other hand, is, however, quite stark. No suggestion was made by Mr Cramond that Mr Adams or Mr Winter swore at him, threatened to punch him, or otherwise challenged him to go "out in the car park" (an expression which during cross-examination Mr Craig agreed meant that a person would be beaten up). Similarly there was no suggestion that Mr Adams or Mr Winter returned for a second interaction with Mr Cramond to bully him. When cross-examined on this issue Mr Craig said that he distinguished the two cases by considering the effect on the other employee: How do you reconcile that with what you did with Adams and Winter?---My view on this matter is I took into account in this particular case the person who was the recipient of the bad behaviour - if I draw a distinction between the Cramond case and this particular case, in the Cramond case if you look at the case from the perspective of Mr Cramond and the nature - how can I describe - the nature in which Mr Cramond received it, it was taken by Cramond as far more serious and caused a much heavier impact on him than what was the case in this particular case with Mr Paul McMah. And what was the impact of those two incidents involving Mr Adams and Mr Winter? What was the impact that you just spoke of that they had on Mr Cramond?---Well, it was very clear with Mr Cramond that it had a - what I would describe as a very serious negative effect on Mr Cramond? What? I'm asking you what you understand it to be?---What I understand? What was the effect?---What was the effect? Telling me that it's negative effect tells me nothing?---So the effect that he was actually extremely distressed by the behaviour of Mr Adams and Mr Winter, and that extreme distress was not evidence in this case with Mr Paul McMah. And you're talking about the ongoing distress that Mr Cramond experiences?---That's correct. And you knew perfectly well that there was no way in the world that the very, admittedly, serious problems that Mr Cramond is suffering could be attributed to those two incidents involving Mr Adams and Mr Winter?---My understanding is that the bulk of Mr Cramond's distress was caused by those two particular incidents. Did you think there had been other complaints made by Mr Cramond?---At the time, no. I'm aware now, after reading this, but at that time, no. (transcript 10 February 2012 pp 291-292) 119 In my view Mr Craig's explanation as to the comparison between the respondent's treatment of Mr McMah and its treatment of Mr Adams and Mr Winter is simply implausible. The most favourable complexion which could be placed on this evidence was that Mr Craig assumed that the bulk of Mr Cramond's distress was caused by those two particular incidents without inquiring further. It is also reasonable to assume for example that conduct such as that displayed by Mr McMah - which was accepted by the respondent as persistent and violent - would for example pose a greater risk to safety at the mine than the conduct of Mr Adams and Mr Winter. However one significant difference between the relative positions of Mr McMah, and Mr Adams and Mr Winter, is that there is no evidence before the Court that Mr McMah was carrying out union functions during his interaction with the other employee, whereas both Mr Adams and Mr Winter clearly were.

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Unexplained failure to consider previous investigations 120 Second, Mr Craig's explanation for the termination of the employment of Mr Adams and Mr Winter lacks credibility when considered in light of his apparent lack of knowledge, at the time of the decision to dismiss them, of either: the conduct of the internal investigation into Mr Cramond's complaint by Father Coleman and Ms Stokes; or the fact that Mr Cramond had complained of 128 other incidents of intimidation at the mine and only one had been substantiated by an external investigator. 121 The concession by Mr Craig (transcript 10 February 2012 p 232 ll 45-46, p 246 ll 30-32 and p 292 ll 16-29) that he did not know about (nor sought knowledge of) either of these matters at the time of his decision to terminate Mr Adams' and Mr Winter's employment - when Mr Craig also conceded that dismissal was the "last resort" in dealing with an employee (transcript 10 February 2012 p 221 ll 23-24) - is very surprising. It is equally curious that Mr Craig could not give a reason why he was not informed of these events by Mr Mark Stroppiana of Human Resources when in Mr Craig's opinion Mr Stroppiana would have known of these events (transcript 10 February 2012 p 292 ll 23-24). This is particularly so in light of the fact that the internal investigation into Mr Cramond's complaints was contemporaneous with those complaints. 122 Mr Craig gave evidence that he relied solely on the decision of the District Court in making his decision (transcript 10 February 2012 p 278 ll 40-43). However in my view the fact that Mr Craig should have done so and did not seek any further information notwithstanding: the seriousness of the potential consequences for Mr Adams and Mr Winter; given Mr Craig's experience of human resources processes - his likely awareness of the probability of Human Resources having investigative material concerning matters involving Mr Adams, Mr Winter and Mr Cramond; the fact that the defamation proceedings were not directed to investigation of industrial disputes; and the fact that Mr Winter was not even a party to the defamation proceedings, suggests a selective appreciation of material to achieve the dismissal of Mr Adams and Mr Winter.

[44]

Involvement of respondent in defamation proceedings 123 Third, in my view the evidence demonstrates that the judgment of the District Court in the defamation proceedings between Mr Adams and Mr Cramond gave Mr Craig a justification to dismiss Mr Adams and Mr Winter for their union-related conduct in relation to Mr Cramond. I have formed this view based on the following: First, notwithstanding that the defamation proceedings were private civil litigation between Mr Adams and Mr Cramond, it was clear from evidence of both Mr Cramond and Mr Craig that the respondent was deeply involved in the District Court proceedings to defend Mr Cramond, including instructing Freehills as his solicitor as well as paying for Senior Counsel to appear on his behalf in the District Court of Queensland. (Interestingly, there is no evidence before the Court as to the extent of involvement of the applicant in that litigation supporting Mr Adams. I consider it reasonable however to draw the inference that the District Court case may have provided another forum for litigation between the applicant and the respondent, as well as constituting the primary dispute between Mr Adams and Mr Cramond.) In any event, Mr Craig gave evidence that he knew, at the time of the District Court judgment, that in respect of the defamation litigation and Mr Cramond's case "BHP Coal was paying the bills" (transcript 10 February 2012 p 240 ll 20-21), that the respondent was effectively conducting Mr Cramond's defence, that it followed that senior management in the respondent instructing lawyers in the defence of Mr Cramond assumed the accuracy of his version of events, and that Ms Sonia Lewis in Human Resources was monitoring that litigation. It is also clear that the judgment, once published, was immediately the subject of interest by Mr Craig as well as senior management of the respondent. Second, it is significant that Mr Craig reported on his decision concerning Mr Adams and Mr Winter to Mr Stephen Dumble, the president of BMA. To adopt the submission of the applicant, Mr Craig brought the fate of two miners at the mine to the attention of persons at the very highest echelons of the respondent. Third, it is not in dispute that there had been significant industrial activity involving the applicant and its members at the mine in the months prior to Mr Craig's decision causing significant lost productivity for the respondent (transcript 10 February 2012 p 286 ll 41-46). Fourth, the "show cause" letters to Mr Adams and Mr Winter for signature by Mr Craig were drafted by the Human Resources staff although Mr Craig considered it "probable" that Freehills assisted in drafting those letters (transcript 10 February 2012 p 248 ll 13-23). Mr Craig also sought legal advice from Freehills in relation to disciplinary action against Mr Adams and Mr Winter. Finally, and importantly, Mr Craig used findings in the District Court judgment as a justification to dismiss Mr Winter. Mr Winter was not a party to those specific proceedings, and did not have an opportunity to put forward his own case to the learned Judge who preferred the evidence of Mr Cramond to that of Mr Winter. 124 Although Mr Craig gave extensive evidence concerning his use of the Just Culture Decision Tree and his reliance on the BMA Workplace Conduct Policy and BMA Charter in reaching his decisions to dismiss Mr Adams and Mr Winter, in light of the facts I have just outlined I am not satisfied that he impartially reached those decisions. The fact that the respondent conducted the defence of Mr Cramond, and that Mr Craig was aware of and briefed on that litigation prior to the decision of McGill DCJ, supports an inference that Mr Craig had already formed a view concerning Mr Adams and Mr Winter and that the judgment simply provided justification for his decision, irrespective of the history of the matter within the respondent or any response they could make to the show cause letters served upon them. Indeed, I also consider that the involvement of the respondent in the District Court proceedings inevitably meant that, to Mr Craig (and, doubtless, other members of the respondent's senior management) the success of Mr Cramond in the District Court proceedings equated to the success of the respondent against the applicant in respect of union activities. I consider it reasonable to draw this inference in these circumstances, and similarly infer that it is unlikely that the respondent would have had similar financial involvement in private defamation proceedings between employees unless the respondent saw that litigation as similarly involving the applicant union. The dismissal of Mr Adams and Mr Winter was the natural progression of Mr Cramond's (and the respondents') success in that litigation.

At a glance

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Judgment (45 paragraphs)

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