Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr David Weule ("the Applicant") has applied to the Fair Work Commission ("the Commission") for a remedy, alleging that he was unfairly dismissed from his employment with Central Queensland Services Pty Ltd ("the Respondent"), which employed him to work at BM Alliance Coal Operations Pty Ltd's Caval Ridge Mine.

• [2] For the reasons set out below I have decided to grant the application.

• [3] Mr Weule began working for the Respondent in July 2022 at the Daunia Mine. In 2024 he was transferred to the Caval Ridge Mine.

• [4] Mr Weule was given notice of his dismissal on 20 September 2024. His dismissal took effect on the same date. He was informed of his dismissal by letter,[1] sent to him by email on that date. He received five weeks' pay in lieu of notice.

• [5] The dismissal followed, and was in relation to, an altercation at the mine, on the haul road. Mr Weule was involved in the altercation. The central issue in this matter is whether the dismissal was harsh, unjust, or unreasonable.

• [6] This application was made under section 394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"), and alleges that the Applicant was unfairly dismissed. In unfair dismissal cases the two main questions are:[2]

• Was the Applicant "protected from unfair dismissal" at the time their employment ended?[3]

• Was the Applicant unfairly dismissed?[4]

• [7] These questions are considered in that order. If the Commission is satisfied that the answer to both is yes, then it can consider whether to order a remedy for the unfair dismissal.

• [8] There are various conditions the Applicant has to meet to be protected from unfair dismissal. There are also various issues to consider in deciding whether someone has been unfairly dismissed.

• [9] Section 382 of the Fair Work Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [10] Section 385 of the Fair Work Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

• [11] The application was filed on 4 October 2024. The employer response was filed on 7 November 2024. The parties did not resolve their dispute by conciliation, and so this application is now being determined.

• [12] If there are contested facts the Commission has to hold a conference or hearing when determining the application.[5] By Directions issued on 2 December 2024, I directed that the parties could provide their views, if any, as to whether this application should be determined in what is referred to as a "determinative conference," or at a hearing, in their outlines of submissions. No party argued the matter should be dealt with by determinative conference. Bearing that in mind I considered whether a hearing would be the most effective and efficient way to resolve the matter. After doing so I decided to hold a hearing. That hearing was held on 30 and 31 January 2025.

• [13] On 2 December I gave the Respondent permission to be legally represented. My discretion to grant permission was enlivened because I was satisfied that it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter. Pursuant to that permission, the Respondent was legally represented at the hearing. The Mining and Energy Union ("the MEU") appeared by right for Mr Weule. I had the considerable benefit of well-crafted filed materials, cross-examination and submissions from both parties' representatives.

• [14] The Applicant, Mr Weule, gave evidence for himself. Mr Adam Hurley, Mr Joseph Melvin, Mr Jake Holt, and Mr Matthew Everingham gave evidence for the Respondent.

• [15] The MEU filed an outline of submissions on 20 December 2024. The Respondent filed an outline of submissions on 14 January 2025. The Applicant filed an outline of submissions in reply on 23 January 2025.

• [16] The MEU submitted that where a reason for dismissal concerns or involves workplace fighting, the Commission must have regard to all the circumstances in which the fight occurred, and there is no presumption that fighting in the workplace will automatically mean that a dismissal is not unfair.[6]

• [17] They submitted that a key factor that the Commission must consider when determining whether a workplace fight constitutes a valid reason for dismissal is whether the Applicant was acting in self-defence.[7] They submitted that when assessing whether the Applicant was acting in self-defence the Full Bench in NSW Trains v Wael Al-Buseri summarised the test as follows:[8]

"the common law test to be applied in cases involving self-defence is whether a person believes on reasonable grounds that it was necessary in self-defence to do what they did. This test is applicable in civil matters. There is both a subjective and an objective element to the test. The subjective element concerns the belief that the conduct was necessary in the circumstances. The objective element goes to whether there were reasonable grounds for the belief".

• [18] They submitted that factors to be considered when applying this test include whether the person's actions were proportionate to the danger seeking to be avoided and whether a means of escape was available.[9] However, there is no rule requiring the accused to retreat from an attack rather than defend himself or herself.[10]

• [19] They argued the incident in this matter was best characterised not as a fight but as an attack on Mr Weule by Mr Torcello.[11]

• [20] As to whether Mr Weule was given an opportunity to respond, the union argued that the Respondent did not appear to genuinely consider or engage with the Applicant's arguments that he was being attacked and that he acted in self-defence. They say there was no consideration of what else Mr Weule could or should have done in the situation.

• [21] The MEU also argued that the Respondent's decision that Mr Weule had breached one of its "Charter Values,", specifically, "Do what's right," could not of itself provide a valid reason for termination. It made this submission in light of the nature and breadth of that "Charter Value," including that it could encompass conduct other than misconduct.[12] It also made submissions about how and whether actions in self-defence could interact with obligations under the Code of Conduct.[13]

• [22] As to other relevant matters the union referred to the length of Mr Weule's employment, the lack of conduct, safety or performance issues in that time, the harsh effect of the dismissal on Mr Weule, the disproportionate nature of the dismissal, and the Respondent's unreasonable failure to provide a skills list.

• [23] The union also made submissions as to remedy.

• [24] The Respondent submitted that there was a valid reason for Mr Weule's dismissal, relating to his conduct. It submitted that Mr Weule was dismissed for engaging a physical violence on the mine site. It submitted that violence is not tolerated anywhere in mining, but physical violence on a mine site (as opposed to at camp) is particularly dangerous.[14] It submits Mr Weule was notified of the reason[15] and provided with an opportunity to respond.[16] There was no unreasonable refusal of a support person.[17] Performance was not in issue.[18] The size of the enterprise and access to HR expertise were neutral matters in this case.[19]

• [25] As to other relevant matters the Respondent referred to the medical review and subsequent welfare check after the incident, and the extension of the Respondent's Employee Assistance Program for three months after the employment ended, the Applicant's failure, disingenuously, to take any responsibility for the incident, and its own lack of obligation to provide a skills list, along with the fact that it had ultimately provided one.

• [26] The Respondent also made submissions as to remedy.

• [27] The union, on behalf of the Applicant, filed an outline of submissions in reply on 23 January 2025, going substantially to the factual findings that should be made having regard to the evidence.

• [28] The parties gave oral submissions in closing, at the hearing, elaborating on their outlines and going to the factual findings that should be made.

• [29] I have considered all of the evidence, and the parties' submissions.

• [30] The dismissal took effect on 20 September 2024 and Mr Weule filed his application on 4 October 2024. There is no doubt, and I find, that the application was made within the period required under subsection 394(2) of the Fair Work Act.

• [31] It was not in contest, and I find, that at the time of being dismissed Mr Weule met the requirements of section 382 of the Fair Work Act and was a person who is protected from unfair dismissal for the purposes of that section 382.

• [32] It is also not in contest, and I find, that Mr Weule was dismissed, the employer was not a small business employer, and the dismissal was not a case of genuine redundancy. So, the only issue that arises under section 385 of the Fair Work Act is whether Mr Weule's dismissal was harsh, unjust or unreasonable.

• [33] Section 387 of the Fair Work Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the Commission considers relevant.

• [34] These are mandatory criteria that must be taken into account and weighed.[20]

Whether there was a valid reason for the dismissal related to the Applicant's capacity or conduct

• [35] In order to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[21] and should not be "capricious, fanciful, spiteful or prejudiced."[22] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[23]

• [36] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.[24]

• [37] A Full Bench of the Australian Industrial Relations Commission has held[25] that "... in determining whether there is a valid reason for a termination of employment arising from a fight in the workplace, the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:

• whether the terminated employee was provoked and whether he or she was acting in self defence;

• the employer's need to establish and retain discipline amongst its employees; and

• the service and work record of the employee concerned."

• [38] The MEU relied on Newton v Toll Transport Pty Ltd,[26] in which a Full Bench stated:[27]

"[172] In support of the proposition put, the Deputy President relies on the following observation of Moore J in AWU-FIME v Queensland Alumina Limited (AWU-FIME) regarding the approach taken by industrial tribunals when fighting or an assault had been established:

'What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.'

[173] The Deputy President's observation may be taken as advancing some sort of 'decision rule' such that in dismissals for fighting the Commission 'will tend to' find that the dismissal is not harsh, unjust or unreasonable, absent extenuating circumstances. With respect, we reject that proposition.

[174] AWU-FIME, and other relevant authorities regarding fighting or assault at work, were considered by a Full Bench of the Commission in Fearnley v Tenix Defence Systems in which the Full Bench concluded:

'We think these authorities support the view that in determining whether there is a valid a reason for a termination of employment arising from a fight in the workplace the Commission should have regard to all of the circumstances in which the fight occurred including, but not limited to:

- whether the terminated employee was provoked and whether he or she was acting in self defence;

- the employer's need to establish and retain discipline amongst its employees; and

- the service and work record of the employee concerned.'

[175] To similar effect, the Full Federal Court in Allied Express Transport Pty Ltd v Anderson (Allied Express) held that: 'the entire relevant factual matrix must be considered in determining whether an employee's termination is for a valid reason.' Allied Express was applied by the Full Federal Court in Qantas Airways Limited v Cornwall - another fighting case:

'We accept that in this case, as in Allied Express Transport Pty Ltd v Anderson, it is necessary to examine the circumstances surrounding the conduct relied on, which constitute the 'relevant factual matrix', to decide whether the termination was supported, in the words of the statute, by 'a valid reason . . . connected with the employee's . . . conduct'. As was said in Cosco Holdings and in Allied Express Transport, a valid reason is one which is 'sound, defensible, or well-founded'. But it is important to remember that the governing words are those of the statute, and that attempts at judicial explanation should not be substituted for the statutory provision. The question remains whether, the employer having terminated the employee's employment, there was a valid reason connected with the employee's conduct... conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterise the nature of the conduct involved. In our opinion, the trial judge was entitled...'

[176] In determining whether a dismissal was harsh, unjust or unreasonable the Act directs the Commission to take into account the matters in ss.387(a) - (h). It is not for the Commission to impose an arbitrary limitation not expressed in the Act. The Commission's statutory task is obfuscated by attempts to articulate a tendency for the Commission to determine certain categories of cases in a particular way."

• [39] Accordingly the whole of the factual matrix should be considered.

• [40] The altercation to which these proceedings relate occurred on the night of 13 June 2024. The people present at the altercation were Mr Weule, Mr David Torcello, known as "Torchie," and Mr Adam Hurley.

• [41] The only direct evidence before me about the altercation was from Mr Weule and Mr Hurley. I also had the benefit of accounts they had given in handwritten statements[28] shortly after the altercation, and in Mr Weule's show cause response two months later. There were some inconsistencies in these accounts.

• [42] For example, Mr Weule's show cause response says he punched "at" Mr Torcello twice but did not know whether he made contact, whereas in his witness statement and under cross examination he said he had always said he had hit Mr Torcello twice. This was a reference to the period between Mr Weule getting out of the car, and getting hold of Mr Torcello's hands. Mr Weule's handwritten statement does not refer to the two punches, but Mr Everingham's account of his conversations with Mr Weule the following day and on 9 July,[29] and union official Jeff Scales' filenote of Mr Weule's discussion with Mr Everingham and Mr Thomas Brough of 9 July,[30] both record Mr Weule talking about the two punches. Mr Brough was acting up as Mr Everingham's manager at the time.[31]

• [43] By way of another example, Counsel for the Respondent also sought to show an inconsistency between the statement and the show cause letter as to the type of glasses Mr Weule was wearing. The latter said prescription safety glasses and the former said safety glasses.

• [44] As a further example, Mr Hurley said in his statement and under cross-examination that he saw Mr Weule take off his seatbelt, but had made no mention of this in his handwritten statement after the altercation.

• [45] The union sought to argue that Mr Hurley had an incentive to take Mr Torcello's side because they were friends, or because Mr Hurley was in line for a direct hire job at the mine, or both. The proposition that Mr Hurley and Mr Torcello were friends was not made out on the evidence. I do not consider their apparent Facebook friendship was of assistance in considering this argument.

• [46] It is not unusual for accounts given at different times to provide more or less detail and, especially where the accounts are given in writing by persons whose written communication skills are not strong, this can give rise to inconsistencies. Mr Weule and Mr Hurley had gone through a distressing experience immediately before writing their original handwritten statements, and Mr Torcello was likely in the same situation. Under cross-examination, Mr Weule said he was in shock when he wrote his statement.

• [47] In addition to Mr Torcello's materials and Mr Weule and Mr Hurley's accounts, there was also evidence about what others said Mr Weule and Mr Hurley had said to them at the time. These are also considered below not as evidence as to the truth of what was said but in relation to the consistency or otherwise of the various statements at the time.

• [48] Both Mr Weule and Mr Hurley had an interest in both the internal investigation and these proceedings. Mr Weule had an interest in avoiding or overcoming a finding of misconduct. Mr Hurley had an interest in avoiding any criticism of his driving and the decisions he made while the altercation was underway, including the decision as to when and how to stop the car. Mr Hurley was in line for a direct hire job. I doubt this affected the content of his initial handwritten statement on the night. He would have had an interest in maintaining consistency with that statement subsequently. Notwithstanding their respective interests, I accept that both Mr Weule and Mr Hurley believed the content of their witness statements filed in these proceedings to be true, and truthfully recounted their memories of the events under cross-examination.

• [49] I preferred Mr Weule's evidence. He was giving his full attention to the altercation, while Mr Hurley had to divide his attention between the altercation and driving on the haul road, an inherently challenging task given the size of oncoming haul trucks. The other person whose undivided attention would have been on the altercation, Mr Torcello, was evasive in the accounts he had given, and conspicuously had not asserted that Mr Weule had initiated the physical altercation. Mr Weule's accounts of being accosted from behind are objectively more likely than Mr Hurley's account of Mr Weule punching or attempting to punch someone in the back seat of a dual cab ute while in the passenger seat. The photographic evidence of Mr Weule's injuries is more consistent with his account of the relevant events. I will now turn to considering Mr Torcello's previous accounts of the altercation, that were before me.

Mr Torcello's previous accounts of the altercation

• [50] Mr Torcello was no longer working at the mine and was not called to give evidence. I had before me his handwritten statement of 13 June 2024, his further handwritten statement of 14 June 2024, his letter of resignation, and other witnesses' accounts of what he had said.

• [51] His handwritten statement of 13 June was as follows:[32]

"At approx 2230 hrs a quick discussion whilst on route to crib about the job details, had escalated in to a full verbal abuse in the car. David. W. had belittled myself and unfortunately a verbal assult followed. The altercator then proceeded to jump out of vehicle to continue assult. Adam Hurley (driver) stopped the car and insisted we cease actions. David. W. then threw some punches, and I defended myself in all manners reasonably.

Immediately Adam Hurley seperated myself & David. W., and we continued to 12 levee crib room, whereapon Adam contacted Jake Holt & Joe Melvin."

(spelling and punctuation in original, save that it was in all capitals)

• [52] Mr Torcello's handwritten statement of 14 June was as follows:[33]

"At approx 2230 hrs, a quick discussion whilst on route to first crib about the drill prep we were working on, escalated in to a full verbal abuse in the vehicle. I was seated at the back, passenger side, and David. W. was seated at the front passenger side. I was belittled by David, and whilst I tried to explain there are better ways to discuss the work method (involving dozers), the argument escalated to full verbal assaults, followed by jostling/arm shoving. Adam Hurley who was driving tried to calm the situation, but tempers flared. David said he'd jump out and sort the matter, which at this time Adam had stopped the LV mid ramp to stop any more risks. At this stage David. W. was out of the vehicle and ready to engage, I also had dismounted to defend the situation. David. W. engaged with the first punch which struck my right face. I then continued by a "head lock" and yelled for him to calm down. No injury was sustained to myself. The situation quickly calmed down with Adam Hurley defusing the indcident. We mounted back in LV and continued to crib room, where Adam Hurley contacted Jake Holt (Acting Supervisor). No further words nor altercations occurred hereafter."

(spelling and punctuation in original, save that it was in all capitals)

• [53] Mr Torcello's two handwritten statements were annexed to both Mr Holt and Mr Melvin's witness statements. Mr Melvin's witness statement does not indicate why Mr Torcello made a further written statement on 14 June. Mr Holt's witness statement says that Mr Torcello asked for a blank copy of the relevant page from the incident form, as he had made a mistake while filling it out, and wanted to do it again.[34] This likely explains why there are two different statements, noting the time of night that they were being written.

• [54] It can immediately be appreciated that the above statements are both brief. The first says nothing about any physical altercation while still in the car even though both other witnesses mentioned it. The use of the term "altercator" rather than "aggressor" or "perpetrator" is unusual; in an assault there can be a single aggressor but an altercation takes at least two altercators, and "altercator" does not connote that the person was the initiator. Both statements obscure who had done what in some places, e.g. "a quick discussion ... had escalated in to a full verbal abuse in the car," "unfortunately a verbal assult followed," "the argument escalated to full verbal assaults, followed by jostling/arm shoving...".

• [55] Mr Melvin stated that he spoke to Mr Torcello the night of the altercation. He said Mr Torcello had told him that he and Mr Weule had got into a verbal argument and it "had turned into a fist fight, initially in the car and then also out of the car when it had been stopped." He said he observed Mr Torcello was "visibly upset with himself, and he seemed to be aware that he had done the wrong thing."[35] Mr Holt says he asked Mr Torcello if he was alright, and he said that he was.[36] Though Mr Holt drove Mr Torcello to the medic, he says they did not discuss the altercation.[37]

• [56] Mr Everingham says he was unable to reach Mr Torcello on 14 June despite attempting to do so.[38]

• [57] Some light is shed on Mr Torcello's state of mind by his resignation letter of the following day, 15 June, to his employer, Chandler Macleod:[39]

"With deep regret, I have made the decision to resign officially from Chandler Macleod, and subsequently from my role at Mine Services, Caval Ridge.

My order of conduct has not only blemished Chandler Macleod, but the Mine Services Department, whom I've always held in high regard as close freinds. But I've let myself down, my family, by totally unbecoming behaviour, that is not of my nature.

I could have easily diffused the situation, but instead chose a path with negative consequences.

No one was right in this situation, and I should have led by example, and sorted Conflict Resolution.

I believe its time for me to hang up my boots with FIFO, and concentrate on a lifestyle

On a further note, I wish for you to plead on especially from my behalf, to Mathew Everingham, to please retain David W with BMA, as it was not all his fault, and even though, yes, he could have also managed the situation in a better way, his many years experience, of which I've held in high regard, as well as his number of years with BMA, should not be forfeited, over an altercation that we can learn from, and make sure this NEVER happens again.

Thank you Steven, for allowing me to represent Chandler Macleod and it's fantastic support network, and to please relay my much appreciation to Mathew Etteridge, Joe Melvin, and Jake Holt."

• [58] The following day Mr Torcello sent through a correction in relation to the spelling of Mr Everingham's name.[40]

• [59] The language of the resignation letter, set out above, is, again, indirect.

• [60] Two months after the altercation on 22 August Mr Everingham had a conversation with Mr Torcello.[41] He provided his note of the conversation which was, in full:[42]

• [61] It is not clear from the face of the note whether the last two lines are part of the same conversation. These notes are self-evidently incomplete and unclear. Despite this, Mr Everingham's statement does not elaborate on these notes, though it does add to them, stating:[43]

[275] I have reviewed my notes of my discussion with Mr Torcello and while they are accurate, I do not think that they are complete.

[276] In addition to what is reflected in my notes, I also discussed the following with Mr Torcello:

(a) what he had meant in his resignation email when he had asked me to please retain Mr Weule. Mr Torcello said that he thought that Mr Weule had happened and wished it had not. He said that was why he had said what he did.

(b) that he thought that both he and Mr Weule could have handled the situation better and diffused it before it got out of hand. In hindsight, he said he should have spoken with his supervisor about the comments Mr Weule had made and asked to work with a different operator.

• [62] As can be appreciated at least on Mr Everingham's account Mr Torcello made no claim that Mr Weule had physically attacked him, and made no admission that he had physically attacked Mr Weule.

• [63] Obviously as Mr Torcello was not a witness in these proceedings, none of the foregoing accounts were adopted by him under oath, and none of them were the subject of cross-examination.

• [64] In the circumstances I do not infer from the Respondent's failure to call Mr Torcello that his evidence would not have assisted its case. However, it is self-evident from the foregoing contributions from Mr Torcello that he was at best evasive about the events in question and particularly avoided being explicit about who had physically attacked whom in the car. In fairness to Mr Torcello, it does not appear that anyone from the company pressed him on this at the time.

• [65] After having regard to the evidence and the parties' submissions in relation to it, I consider the events were as follows.

• [66] It was not in dispute that Mr Hurley was driving a Toyota Hilux on the haul road shortly after 10.30 at night. Mr Weule was in the front passenger seat. Mr Torcello was in the back seat immediately behind Mr Weule and diagonally behind Mr Hurley's left shoulder.

• [67] Mr Weule made a comment to Mr Torcello, to the effect of 'I think my dozer is sick of cleaning up after your dozer.'[44] Mr Weule described this as a joke, but it was a passive-aggressive comment. The two argued and swore at each other.[45] During this time Mr Weule turned towards Mr Torcello. He then turned back and faced the front.[46]

• [68] Mr Torcello leaned forward and grabbed at Mr Weule from behind. Mr Torcello caused some minor injuries to Mr Weule's face. Mr Torcello also bit Mr Weule's left thumb when Mr Weule reached his left arm across the front of his body to struggle with Mr Torcello. Mr Weule was scared while this was happening.[47]

• [69] This went on for a short period of time until Mr Hurley stopped the Hilux when they reached a flat part of the haul road. It was not possible to pull over by the side of the road because there were bunds on the side of the road, so the ute was stopped on the road itself.[48]

• [70] Mr Hurley told Mr Weule and Torcello to stop fighting.[49] He then stopped the car.[50] After he stopped, a haul truck that had been on the other side of the haul road drove past them.

• [71] Mr Weule got out of the car, and then opened the back door where Mr Torcello was sitting. The two tussled, and Mr Weule punched Mr Torcello twice. Mr Weule then got hold of Mr Torcello's hands.[51]

• [72] The two struggled further, on the side of the Hilux closest to the road shoulder.

• [73] While Mr Weule and Mr Torcello were both outside of the car, Mr Hurley yelled at them to stop.

• [74] Mr Weule and Mr Torcello settled down.[52] Mr Weule then let go of Mr Torcello's hands.[53] They were both out of breath.[54] They both silently acknowledged it was over.[55]

• [75] None of the three could have safely left the vicinity of the Hilux given its location on the haul road, the fact that it was night, and the bunds at the side of the haul road.

• [76] Mr Weule subsequently complained to the police that Mr Torcello had assaulted him.

• [77] Mr Weule and Mr Torcello were in their mid-fifties at the time.

• [78] I will next consider, in more detail, some of the significant areas of controversy between the parties. They relate to:

• whether the altercation had escalated from verbal to physical by Mr Weule saying "let's sort it out now," or similar;

• whether Mr Weule had undone his seatbelt in order to turn and punch, or attempt to punch, Mr Torcello; and

• whether Mr Weule had been the first of the two to make, or attempt to make, physical contact, by punching Mr Torcello or attempting to do so, or whether he had acted in self-defence;

• whether Mr Torcello had put Mr Weule into a headlock, or whether he had tried to "bear hug" Mr Weule;

• whether, in any event, Mr Weule had been at least partly at fault because he had started an argument when he should not have;

• whether Mr Hurley could have stopped the car sooner;

• whether Mr Weule could have got away from Mr Torcello rather than try to defend himself against Mr Torcello;

• whether Mr Hurley had physically broken up the altercation or whether he had just yelled at the two to stop;

• whether riding back together means Mr Weule had not been afraid;

• the extent of Mr Weule's injuries and whether they were consistent with his account.

• [79] These were not the only issues of controversy, but they were the most relevant to the question of whether there was a valid reason for termination.

• [80] Turning to the issue of whether Mr Weule had said words to the effect of "Let's sort it out now," it is observed that in his statement Mr Hurley said:[56]

"53. Mr Torcello asked Mr Weule why he hadn't just said something at the time and brought the three of us onto the ground to talk about the job.

54. Mr Weule then responded by saying that Mr Torcello was just whinging because he wasn't on the digger. At that stage I said, "Stop it". I used these exact words.

55. Mr Weule then said, "Let's just sort it out now". Mr Weule used these exact words.

57. I saw Mr Weule take off his seat belt, turn his body towards me and start swinging his left hand towards the back seat in the direction of Mr Torcello.

58. I could not see if Mr Weule's swings were connecting with Mr Torcello."

• [81] In his handwritten statement of 14 June Mr Hurley had said, relevantly:

"I told them both to stop. Dave said lets sort it out now and turned around and punched Dave. T in the back seat. Dave. T returned punches while I was driving ..."

• [82] Mr Weule's representative took Mr Hurley to paragraph 55 of his statement, in cross-examination. Their exchange was as follows:

Mr Nash: You said at [55] that you recall Mr Weule saying "Let's just sort it out now."

Mr Hurley: Yeah. So before that conversation, Torchie said we could have got all three of us on the ground and talked about the job and then why couldn't we - he asked - Why couldn't we sort it - sort it out then? and then, yeah, Mr Weule said let's sort it out now.

Mr Nash: So you didn't - you didn't take that to be a threat of violence? It was more about talking?

Mr Hurley: Nah, I didn't really take it as violent, no.

• [83] Mr Weule denied saying "let's sort it out now."

• [84] Having regard to Mr Hurley's evidence under cross-examination, whether Mr Weule used the phrase "let's sort it out now" or not does not provide assistance in weighing the evidence as to whether Mr Weule acted in self-defence or initiated the physical violence.

• [85] I now turn to the issue of whether the altercation occurred by way of attack by Mr Torcello, and self-defence by Mr Weule. In doing so I will also consider the evidence about whether Mr Weule undid his seatbelt in order to strike, or attempt to strike, Mr Torcello, initiating the physical altercation.

Whether Mr Weule undid his seatbelt, and who initiated the altercation

• [86] As stated above, Mr Hurley and Mr Weule were not of the same mind as to whether Mr Weule had undone his seatbelt prior to the physical altercation or when the car stopped. In my view this was a matter of differing recollections rather than one witness being less than forthright.

• [87] Some witnesses gave evidence as to what they remembered Mr Hurley, Mr Weule, or Mr Torcello saying to them on the night of the altercation or the day after.

• [88] Mr Everingham said that when he spoke to Mr Weule on the afternoon of 14 June, Mr Weule said Mr Torcello had assaulted him first. Mr Everingham said that he asked Mr Weule whether he had thrown any punches, and Mr Weule had said "yeah, I let a couple go."[57]

• [89] Mr Melvin said that Mr Hurley told him, the night of the altercation, that he had seen Mr Weule undo his seatbelt and then turn around and punch Mr Torcello.[58] Mr Melvin also said Mr Weule told him, that night, that he had been attacked in the car while they were driving,[59] and that Mr Weule had said that again in a phone call within a few days.[60]

• [90] Mr Holt said Mr Hurley told him that Mr Weule and Mr Torcello had been arguing in the car and began throwing punches at one another, and when Mr Hurley stopped the vehicle, the physical altercation continued outside the vehicle.[61]

• [91] Mr Everingham said that when he spoke to Mr Hurley early on the morning of 14 June, Mr Hurley told him that Mr Weule and Mr Torcello had had a verbal disagreement which soon escalated to physical violence in the car, that once the car had stopped they had continued their physical altercation outside, and that it was not until he intervened that they stopped.[62]

• [92] Mr Everingham says he interviewed Mr Weule on 9 July. His witness statement says Mr Weule said he did not take his seatbelt off and turn around, that he admitted to punching Mr Torcello more than once while he was trying to defend himself, and that the punches were only soft. Mr Everingham's statement does not recount anything else Mr Weule said, during this twenty minutes, about what had happened in the altercation, but it does refer to Mr Weule saying that he thought Mr Hurley and Mr Torcello had colluded. Mr Everingham's statement attaches a brief note Mr Brough took of this interview and then sent by email, which gives slightly more detail:

Got to work area, torchy went to bathroom Adam and Dave scoped the work area. When torchy came back he started pushing in the wrong direction.

Dave contacted torchy via B9 and explained what direction they should be pushing and where they should be working, torchy than proceeded to move away and started working down the other end.

Dave had a little dig at torchy that his dozer broke because he had to continue to clean up after him.

Escalated to verbal argument with swearing and inappropriate language

Torchy than put Dave into a head lock and started throwing punches to Dave's head and also apparently tried to gauge his eyes out.

When the car stopped Dave got out and the physical altercation continued Dave than punched Jeff [sic] twice in the head and controlled his arms.

Adam witnessed it and joe also witnessed blood from the altercation.

Dave says he didn't initiate the altercation as stated in Adam s statement.

• [93] Mr Scales' notes[63] provide the most thorough account of this interview and appear to show that Mr Weule provided information omitted from both of the accounts above. The notes were as follows:

David Weule Meeting - Caval Ridge. 9-7-2024 10.00 am. Phone [a phone number was set out here].

Must be an honest account or breach of charter values.

While at toilet me and other op planned job & worked toward achieving plan

Torch came into push after being at toilet & started pushing dirt around everywhere.

I called him on c9 back channel & let him know the plan we were working to

At crib time we got in the car & started heading toward crib hut.

Torch asked me what was wrong with the dozer (as i had a fault)

I said its probably sick of cleaning up after your dozer

Just mentioned that had concerns about his behaviour when he wasn't put on the digger & that his actions of not following the plan wasn't hurting the supervisors. Its hurting the guys that work with him - I needed him to know.

We continued to travel toward crib when torchy attacked me from behind.

I couldn't do anything until the car stopped. As soon as it did i freed myself and jumped out to retrain Torch before he could attack me again. I wound up giving him 2 soft ones.

Not much I could have, was grabbed from behind - put in a choke hold & unable to ask Adam (driver) to stop the car & had to endure the attack & try to free my head and neck. Once car stopped instinct was it to restrain Torch so attack would stop. During struggle to restrain him I responded with some soft taps. I was in fear of my safety & reacted as such.

in future I think I will just say nothing & just keep my head down to avoid issues.

just note that our member was attacked & that he was not in a position to defend himself. DW moved to restrain Torch once car came to a stop. DW has reported the assault to the police. Have concerns company failed to provide DW a safe place of work.

On that point - I had to wait at crib hut for about 45 min before Supervisor arrived.

I remained inside the crib hut & Adam & Torch were outside.

Not sure what they were doing but Adam didn't speak to me at all.

Supervisor was shocked when he saw the blood scratches & bruising and became concerned

(punctuation and spelling in original, capitalisation omitted)

• [94] Mr Everingham says that he interviewed Mr Hurley on 9 July, for about twenty minutes. Mr Everingham says Mr Brough took notes of the meeting, and then emailed those notes to him that afternoon. Mr Everingham has provided those notes which were, in full:

Dave took his seat belt off and turned around and threw the first punch.

• [95] Despite these scant notes Mr Everingham says that on 9 July Mr Hurley told him that Mr Weule and Mr Torcello were exchanging words and the conversation escalated, Mr Weule took off his seat belt and turned toward the back seat and started throwing punches at Mr Torcello, Mr Torcello had been retaliating in the car, Mr Hurley had pulled the car over, and then both Mr Weule and Mr Torcello had got out of the car and kept fighting, and he had had to split them up.

• [96] Mr Everingham says he had a further meeting with Mr Weule after this, on 12 July. He says that during this meeting Mr Weule said he had not started the physical altercation, that during the altercation Mr Torcello had bitten half of this thumb off, and that Mr Hurley must have missed some of the things that happened in the car because he was driving. Mr Everingham says this meeting also went for around 20 minutes. Again, Mr Brough made a very short note, as follows:

There was no mention of head lock in your statement??

Took Seat belt off Dave says he didn t take his seatbelt off.

Thumb bitten off? You haven t mentioned that previously in statement or first interview.

Believes adam has missed 50% of what happened, I would say of the 50% adam witnessed he didn't portray Dave as the victim."

• [97] Mr Everingham says he spoke to Mr Hurley again at some point between 22 and 27 August. Mr Hurley said "as far as he was concerned, Mr Weule had started the physical altercation," and that "if Mr Torcello had choked or grabbed Mr Weule from behind, then he had not seen it."[64]

• [98] The union argued that the employer could have obtained electronic records, from the Hilux, regarding when seatbelts had been undone, and that an adverse inference should be drawn from their failure to do so. The existence of a log of when seatbelts are done up and undone was not established and I have not drawn any adverse inference from the failure to produce or tender such a log.

• [99] Whether Mr Weule undid his seatbelt during the altercation or not, it is plainly implausible that a man, let alone a man in his mid-fifties, would be able to swivel sufficiently to punch or attempt to punch someone in the back seat with his left fist, while still in a seated position.

• [100] I accept Mr Weule's statement that he only tried to reach back to push Mr Torcello away and that that was when Mr Torcello had bit Mr Weule's thumb.[65]

• [101] Mr Weule would have had to somehow get his legs up from under the dash and get up onto the seat in order to be able to turn around enough to try to punch someone in the back seat with his left fist. No-one said anything about Mr Weule getting up onto the seat to turn around.

• [102] It is more plausible that he was swinging his hand to try to get Mr Torcello to release him. Mr Hurley's statement went on to say:

59. I could see Mr Torcello in my peripheral vision making movements towards Mr Weule.

60. Mr Weule kept swinging at Mr Torcello and some of his swings almost hit me.

61. I immediately screamed at Mr Weule and Mr Torcello to stop fighting and I kept

62. I became quite overwhelmed at the situation in the car, and I wanted to stop the car immediately. At that stage however, it was not safe to stop the car because I could see a haul truck on the other side of the haul road, and we were not on a flat surface.

• [103] Mr Hurley was driving on the haul road at night, which I accept requires focus given the potential dangers. He would have been focused on the road. He could not have continually watched what was happening in the passenger seat and back seat. He was also overwhelmed. His account that Mr Weule had escalated the situation by swinging his left hand towards the back seat is inherently less plausible than Mr Weule's account that Mr Torcello had initiated physical contact from behind and that he was attempting to defend himself from it.

• [104] The Respondent put on evidence about previous interactions between its witnesses and Mr Weule:

(a) One of the Respondent's witnesses, Mr Melvin stated that Mr Holt had told him that Mr Weule had become heated and aggressive in his language, and had spoken loudly, on an unspecified date in early June 2024.[66] Mr Melvin also said Mr Weule had become frustrated with him and had raised his voice on an unspecified date.[67] Mr Melvin agreed under cross-examination that Mr Weule was raising a safety issue at the time, and said they were discussing options at the time. He said people should speak up if they feel unsafe.

(b) Another witness, Mr Holt, referred to three exchanges, for which he could not remember dates or times. One related to Mr Weule complaining loudly and swearing when he and Mr Hurley came down early for Mr Weule's crib break. Timing of crib breaks is regulated to assist in managing fatigue. Another was that Mr Weule complained to him about the way he, Mr Holt, had spoken to him publicly over the radio and saying he had been mining since before Mr Holt had been born. The last was Mr Weule complaining about a particular job with Mr Melvin and Mr Hurley present.[68] Mr Holt agreed he was aware that there had been an injury in connection with this job.

(c) Mr Everingham said Mr Weule could be "loud" and "gruff," and could get frustrated when he thought something could be done in a better way, which Mr Everingham attributed to his long experience in the mining industry.[69]

• [105] For his part, Mr Weule said he did speak loudly, particularly when it was noisy or he had been wearing ear plugs. Mr Weule spoke loudly in the witness box. The description of the events above gave the impression that he spoke up about issues of concern to him, including fatigue and other safety issues, which is to be encouraged. Despite Mr Melvin and Mr Holt being aggrieved about the way Mr Weule was said to have spoken to them on these occasions, there was no evidence of any reprimands, warnings, or other disciplinary action having been taken in respect of Mr Weule. Neither of them claimed Mr Weule had been physically aggressive. The events recounted above are of limited assistance to me in determining this application. I will next deal with the issue as between Mr Hurley and Mr Weule's accounts, as to whether Mr Torcello attempted to bear hug Mr Weule or put him in a headlock.

• [106] In his accounts of the incident, Mr Weule maintained Mr Torcello put him in a headlock. He said he had suffered a friction burn on his lip, from Mr Torcello's jacket, when he had struggled to get free. Mr Hurley said Mr Torcello was trying to "bear hug" Mr Weule.[70] A headlock is more plausible from behind a passenger seat of a ute given the breadth of a passenger seat compared with a headrest. Either is consistent with Mr Weule being scared and trying to get free of Mr Torcello. I will next deal with the issue of whether Mr Weule caused the physical altercation by starting a verbal argument.

Whether Mr Weule caused the altercation by starting a verbal argument

• [107] The Respondent also sought to argue that Mr Weule was at least in part responsible for the physical violence because he had started an argument while the three of them were driving on the haul road.

• [108] Opinions may differ as to whether Mr Weule's comment about his dozer being sick of cleaning up after Mr Torcello's dozer was provocative or sufficiently provocative to initiate a verbal argument that would lead to a physical altercation. If it was, that goes to whether Mr Torcello's conduct was excusable, rather than to whether Mr Weule's subsequent conduct, in response to Mr Torcello grabbing him from behind, was in self-defense. In all the circumstances these comments would not have been sufficient to warrant dismissal had the verbal and physical altercation not ensued. I will now turn to the issue in dispute as to whether Mr Hurley could have stopped the car sooner.

• [109] Given the conditions reasonable minds could differ as to whether Mr Hurley should have stopped sooner while still on a gradient, using hazards and a two-way announcement, or waited until the road was flat. There was also dispute as to how fast Mr Hurley was going. I make no adverse finding in respect of Mr Hurley's driving or stopping the vehicle. Mr Weule was scared and his fear was objectively reasonable in the circumstances regardless.

• [110] I will now turn to the issue of the events that followed once Mr Hurley stopped the car. In his witness statement Mr Weule said the following[71] regarding the events immediately before and after the car stopping was as follows.

"21. After I said this, he started swearing at me and so I swore back at him. I had been swivelled around in my chair to talk to him, but I then I had had enough so I turned back around so that I was facing the front and sat back in my seat.

22. As soon as I turned around, he grabbed me in a headlock with his elbow around my neck. I could not breath and I was panicking. He then punched me 3-4 times in the mouth and raked his hand across my head and cut my ear. I tried to push him back, but he bit a gouge out of thumb. Then he tried to gauge my eyes out. I was wearing prescription safety glasses but I was terrified that they were going to break and I would be blinded. I still could not breath and I was worried I was going to die.

23. I tried to get out of the headlock but I had nowhere to go, eventually I managed to rip my head out but I got burns on my lip from the friction against his jacket.

24. This all lasted a couple of minutes. During this time, Adam kept on driving up the haul road and screaming at Torchie to stop. I was also nervous that we would have an accident as the haul road is a dangerous place. There are large bunds beside the road and the road is frequented by haul trucks with 3-4m high tyres that could have crushed our light vehicle.

25. Just as I got my head free, Adam stopped the vehicle on the side of the haul road. I immediately unclipped my seatbelt and took my glasses off which sitting lopsided on my face. I backed out of the car and stood on the side of the haul road.

28. ... I walked around and opened the back door of the car where he was sitting. I saw him struggling with his seatbelt clip which I assumed meant he was trying to get up to attack me further. As soon as the door open he sprang at me and we tussled for a little bit and in the process I hit him twice. I did not hit him very hard and did not cause any bruising or marks. I then grabbed his hands to try to incapacitate him. He struggled to get his hands free but he couldn't do it. I kept hold of his hands for about a minute until he calmed down.

29. After this, everything went quiet and we stood and looked at each other. We were both out of breath and I understood that the threat had passed and we both silently acknowledged that it was over. I then got back into the car grabbed my coffee cup and put my glasses back on and Adam drove us all to the crib hut for our crib break."

• [111] There was a suggestion from the Respondent that Mr Weule could or should have stood on the other side of the Hilux, once it stopped, rather than going to Mr Torcello's door and trying to get control of the situation. The implication of such a proposition is that Mr Weule should have gone to the side of the ute that was facing the centre of the haul road. This is not accepted. Neither choice was wholly satisfactory, as one involved trying to subdue an attacker on the road shoulder, and the other involved seeking to evade an attacker by standing on the haul road. The availability of this second option did not render Mr Weule's choice to take the first option disproportionate.

• [112] There was some controversy between the parties as to how the altercation came to an end. Mr Hurley said he pushed the two men apart. Mr Weule said he did not. The handwritten statements of the two of them, and Mr Torcello, are not explicit in that regard, with Mr Hurley saying he ran over to break it up, Mr Torcello saying he defused the situation, and Mr Weule saying nothing about Mr Hurley approaching them at that point at all.[72] By Mr Melvin's account of his conversation with Mr Hurley on the night of the altercation, Mr Hurley told him that he had broken Mr Weule and Mr Torcello up.[73] By Mr Everingham's account of his conversation with Mr Hurley the next morning, Mr Hurley told him he had 'intervened.' The various language does not make it clear whether Mr Hurley had broken them up by physically getting between them, or by telling them to stop.[74] In either event the matter settled and was over. The three men travelled back to the crib hut together in the Hilux.

• [113] As indicated above, Mr Weule had said, in his statement:[75]

"22. ... I was wearing prescription safety glasses but I was terrified that they were going to break and I would be blinded. I still could not breath and I was worried I was going to die."

• [114] And he had also said:[76]

"26. I when I got out of the car, I was scared for my life. I was worried that Torchie would continue attacking me and I knew that he and Adam were friends so I was concerned that Adam would support Torchie in his attack of me."

• [115] The Respondent sought to cast doubt on the extent of Mr Weule's fear on the basis that he had travelled back to the crib hut in the vehicle with Mr Torcello and Mr Hurley. Even putting aside whether it is reasonable to suggest that Mr Weule should be left alone on a haul road at night to be picked up by someone else, it is clear the moment had passed and the altercation was now over. It would not be surprising for someone to be less scared after an altercation had finished than during it.

• [116] There was also some controversy as between the parties as to the extent of Mr Weule's injuries. Mr Weule had gone into some detail in his statement and his statement in reply about the injuries he said he had suffered.

• [117] Mr Melvin made a handwritten statement a month after the event, on 16 July 2024. In full it was:[77]

"On the 13.6.24 on was helping out the dragline team and Jake Holt was looking after the crew. I got a call from Jake telling me that there had been an altercation (physical) between David Weule and David Torcello. I directly went to the 1212 Natural Surface crib hut. When I got there I first spoke with Dave Torcello to see what happened. I then got Jake to bring him to the medic for a DNA and after that we got his statement. When I spoke to David Weule in the crib hut I noticed he had a scrape on his nose and he was a bit shook up. I brought him to the medic for observation and DNA. The medics gave him the all clear. I then proceeded with the investigation process.

Both of them were brought back to camp after statements taken."

• [118] "DNA" in this context refers to drug and alcohol, not deoxyribonucleic acid.

• [119] Mr Melvin's statement variously said he had arrived approximately 20 minutes or about 30 minutes after receiving Mr Holt's call.[78] He said other than the scrape on his nose and appearing shook up, he did not recall seeing any blood on Mr Weule, or any other visible injuries.[79] He said he did not remember observing that Mr Weule had a bleeding ear, punched and scratched lip, or bleeding hand, or bruising or lacerations. He says he does not remember Mr Weule mentioning to him that he had hurt his neck.[80] Under cross-examination he said he did not look at Mr Weule's hands or examine Mr Weule for injuries.

• [120] Mr Holt said when he first saw Mr Weule on arriving at the crib hut after receiving a call from Mr Hurley, he saw that Mr Weule had a mark on the bridge of his nose, a mark on the right side of his lip, and red marks around his eyes and on his cheek. He also saw smears of blood on Mr Weule's lip and nose. He says he remarked on Mr Weule's "fat lip," and that he had blood coming out of him.[81] He does not remember Mr Weule having a bitten thumb,[82] but under cross examination agreed that as Mr Weule's hands were in his lap he would not have seen this, and that other than in relation to the lip he does not remember any lacerations or bruising, or anything to indicate a sore neck.[83]

• [121] Mr Holt said he filled out the initial pages of the "CVM FRM Event Interview Guide" that contained Mr Weule's handwritten statement.[84] Mr Weule had said Mr Holt had done so because of Mr Weule's injured thumb. Mr Holt said he could not recall while he had filled this part of the form out for Mr Weule.

I was then driven to first aid. They took a look at me but didn't really do anything. I then underwent a drug and alcohol test and wrote a statement about the incident which I didn't retain a copy of.

• [123] Mr Everingham made inquiries of the medics, and said Ms Dayna Gellatly, site paramedic has said to him that both men seemed "sheepish" and did not want to talk. Mr Everingham provided a copy of an email from Dayna Gellatly, site paramedic, of 15 July 2024, which stated as follows:

"Subject: Clinical Assessments - Sensitive Information

I have discussed this with my health team, and I can provide a brief overview from my clinical assessments that night. Details I can provide are below:

CMW #1: Presented with superficial abrasions and minor facial swelling, first aid treatment was offered but declined. CMW was contacted by medics the following day for welfare check to which the CMW replied that he was all good.

CMW #2: Presented with superficial redness to cheek with nil other notable injuries. No treatment was necessary and CMW was contacted the following day for a welfare check to which he replied that he to was all good.

Nil further follow ups were required for either CMW and both cases were closed from our level.

I am unable to provide information outside of a clinical nature.

If you require more details that are outside of my clinicial assessments please don t hesitate to contact my health team, Tanya or Amanda and they can discuss with you any further details you require."

• [124] There's nothing to suggest Mr Everingham at the time, or the Respondent otherwise, made further inquiries to "Tanya or Amanda," or sought copies of the full clinical notes. No party sought an order in these proceedings requiring production of the full clinical notes. Ms Gellatly was not called as a witness. Mr Everingham says he spoke to her sometime between 22 and 27 August to ask if she had taken any photographs, and that she said she had not.[86]

• [125] In his reply statement Mr Weule said of his visit to the paramedics:[87]

[47] ... I was taken to see the paramedic after the incident, and I was surprised by how uninterested she seemed in my injuries and how little care was provided. She took a quick look at my ear, because blood was coming out but other than a quick glance, she did not inspect my other injuries or provide any bandaging. Instead, she seemed more focused on performing a drug and alcohol test. I remarked to Mr Melvin about how little the paramedics seemed to do.

[48] Following the paramedic visit, I got paper towel myself to stop the bleeding in my thumb.

• [126] Mr Everingham says that when he spoke to Mr Hurley in August, Mr Hurley said he had seen some blood on Mr Weule's nose and around his ear or neck, but nothing that looked serious or raised an alarm, and that he did not see any obvious signs of blood on Mr Torcello.[88]

• [127] Mr Weule provided the following photographs of his injuries:[89]

(a) a photograph taken 14 June 2024 showing abrasions on his bottom lip;

(b) another photograph taken 14 June showing an abrasion on his left ear;

(b) a photograph taken 15 June showing two injuries to his left thumb; and

(c) two photographs taken 20 June, both showing a yellowing bruise on his chest and a mark near his left shoulder;

• [128] The dates of these photographs were derived from their metadata and were not in dispute.

• [129] The evidence as to injuries is consistent with Mr Weule's account.

• [130] Having made those observations I now turn to the way the employer characterised the reason for the dismissal.

Respondent's characterisation of reasons for dismissal

• [131] The Respondent provided a stand down letter to Mr Weule dated 14 June, indicating it was investigating allegations of having a physical altercation with another team member while on site and removing a seatbelt in a vehicle while it was still in motion.[90]

• [132] After the investigation a show cause process occurred. The show cause letter the Respondent sent to Mr Weule stated, relevantly:[91]

The investigation is now complete. The investigation has found that:

1. On the 13th of June 2024 you and another Coal Mine Worker (CMW) got into a physical altercation that started in a light vehicle then continued outside of the vehicle. During the physical altercation you punched the other CMW multiple times.

Based on the findings of the investigation, I have concluded your actions constitute misconduct and are in breach of Company policies and procedures, including:

Respect for all: We all have a responsibility to contribute to a safe, fair and respectful work environment, free from harassment, sexual harassment and sexual assault, bullying, racism and discrimination; and

Respect for All: Always act professionally at all times and treat everyone with respect.

Do what's right - A sustainable future starts with safety and integrity, building trust with those around us.

David, I am also concerned that your actions demonstrate behaviour that is inconsistent with your obligations as a cola mine worker under the coal Mining Safety and Health Act 1999 and Regulations 2001. Specifically:

Comply with this act and procedures applying to the worker of person that are part of a safety health management system for the mine;

To work or carry out the workers or persons activities in a way that does not expose the worker tor person or someone else to an unacceptable level of risk;

Not to do anything wilfully or recklessly that might adversely affect the safety and health of someone at the mine."

• [133] The letter went on to invite Mr Weule to show cause why disciplinary action should not be taken.

• [134] In the termination letter, the employer set out the same finding.[92] By that same letter the employer rejected Mr Weule's claim that his conduct had been justified. It found his conduct had been unacceptable and breached the employer's "charter values." It found that his "failure to take accountability and responsibility for your actions in this event" raised "serious concerns about the Company's ability to have trust and confidence in you moving forward," thereby not only rejecting Mr Weule's justification of self-defence but also indicating that by maintaining he had acted in self-defence Mr Weule had undermined trust and confidence.

• [135] In the circumstances, having regard to all of the evidence, the reason for the dismissal was the altercation of the night of 13 June 2024.

• [136] In that altercation, Mr Torcello attacked Mr Weule, and Mr Weule defended himself. Mr Weule had an objectively reasonable basis to consider that he needed to defend himself. The actions he took were proportionate and reasonable having regard to the events and the conditions on the haul road at the time. It was reasonable for him to continue to assert that he had acted to defend himself.

• [137] Accordingly I do not accept there was a valid reason for the dismissal related to Mr Weule's capacity or conduct.

Whether the Applicant was notified of the valid reason

• [138] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[93]

• [139] As I am not satisfied that there was a valid reason related to dismissal, this consideration is not relevant[94] and accordingly cannot have much weight in the overall assessment of the factors set out in section 387 of the Fair Work Act. For completeness though, as can be appreciated from the show cause letter referred to above, the Respondent notified the Mr Weule of the reason for the dismissal.

Whether the Applicant was given an opportunity to respond to any valid reason related to their capacity or conduct

• [140] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances[95] and accordingly cannot have much weight in the overall assessment of the factors set out in section 387 of the Fair Work Act.

• [141] For completeness, even if I am wrong about the existence of a valid reason relating to conduct, I make the following observations about whether Mr Weule had a proper opportunity to respond.

• [142] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee's employment.[96]

• [143] The person charged with investigating the matter was Mr Everingham. Of all of the witnesses Mr Everingham was the most defensive and the least willing to make concessions.

• [144] Mr Everingham's written statement gave the impression that he had already decided, by 14 June 2024, that this was not a situation of attack and self-defence. His statement says that on 14 June he submitted the incident into a platform called "Ethics Point." He said:[97]

[91] It was the first time that I had used the platform, and I found it difficult to use. It did not seem fit for purpose to me when the incident involved two people and there wasn't clearly an "Impacted Person" and a "Respondent."

• [145] On the morning of 14 June, Mr Everingham arranged for the two men to be flown home.[98] He did not arrange for them to travel separately and so they ended up having to wait for transport together. If Mr Everingham had been open to persuasion that Mr Weule had been responding to an attack it seems unlikely he would have had Mr Weule with Mr Torcello waiting for transport together.

• [146] At around 2 pm on the same date, 14 June, Mr Everingham spoke to Mr Weule by phone. Even though, on Mr Everingham's account, Mr Weule told him in that call that Mr Torcello had assaulted him first,[99] Mr Everingham says he was surprised to hear from Mr Weule that he was going to go to the police.[100]

• [147] Also on Mr Everingham's own account, Mr Weule said, in that call, that it wasn't looking good, and he replied "You've been in the business long enough; you know how these things go."[101] Mr Weule took from Mr Everingham's comment "you know how these things go" that he had already made up his mind about the incident.[102] Mr Everingham tried to explain this by stating that what he meant was that violence was not tolerated at mine sites, and that he was not suggesting to Mr Weule that he had already made up his mind.[103]

• [148] Mr Everingham spoke to Mr Weule again on 17 June.[104] He says he was again "quite surprised" when Mr Weule said Mr Torcello's resignation letter didn't make any difference to him, that Mr Torcello was out of control and dangerous, and that Mr Weule was not going to let him get away with it. An investigator who was open to persuasion would not be surprised to learn a person claiming to have been attacked would bear such a sentiment. But when Mr Weule reiterated he was going to go to the police, Mr Everingham, again on his own account, immediately discounted the possibility that Mr Weule was going to the police because he had been the victim of an assault, instead saying:[105]

"The way that Mr Weule said this comment made me think that he was not genuine in his reasons for wanting to report Mr Torcello to the police and that it was really about Mr Weule trying to keep his job."

• [149] In discerning from "the way that Mr Weule said this" that he had ulterior motive, Mr Everingham does not seem to have been open to the possibility that Mr Weule's explicit comments in that call and the previous call, about the attack, might equally or better explain his intention to go to the police.

• [150] Mr Everingham first formally interviewed Mr Weule on 9 July 2024. I have set out above his reflections on the interview and the note taken by the person supporting him, Mr Brough. He provided no notes of that interview, or the interview with Mr Hurley, of his own. Mr Brough's notes, set out above, were incomplete and perfunctory. Mr Everingham's account of this interview, in his statement, is brief. Comparing Mr Everingham's account, and Mr Brough's note, with Mr Scales' note shows how much of what occurred at that interview was not retained by Mr Everingham. This is consistent with Mr Everingham going through the motions rather than keeping an open mind.

• [151] There was a subsequent show cause process, which proceeded on the basis that the finding had been made, and Mr Weule had the opportunity to show cause as to why disciplinary action should not be taken. Mr Everingham says that following that show cause process he decided, on about 20 August 2024, that Mr Weule's employment should be terminated. This subsequently occurred, after the employee relations manager asked Mr Everingham to undertake some further inquiries and provide some further information.[106]

• [152] It was not until the employee relations manager asked for this additional information that Mr Everingham finally spoke to Mr Torcello. As can be appreciated from the above his notes of the call are cryptic, and his statement indicates he asked Mr Torcello about the latter's resignation letter. There is nothing to show he asked Mr Torcello whether he had physically attacked Mr Weule or whether Mr Weule had acted in self-defense.[107]

• [153] Under cross-examination, Mr Everingham was asked about the part of his statement in which he had stated that there was general acceptance and understanding that there's zero tolerance for physical altercations at the mine.[108] Mr Everingham said he did not know if that had ever been written. The following exchange then occurred:

Mr Everingham: I guess - I'm not - It's the rate of retaliation, or the rate or the response to that, I guess. I've never experienced it, so it's a bit hard for me to say.

Mr Nash: So would you say that it would be acceptable in some circumstances for [indistinct] to take action, hit somebody, in self-defence to prevent a greater attack?

Mr Nash: So are you saying in that situation somebody should just lie down and be hit?

Mr Everingham: Not sure about lie down and be hit. There's always options. I'm not sure if you've been involved in any of those sorts of aggressive behaviour towards you, I know I have outside of work, I always think there's an option, yes.

Mr Nash: Now how would you consider disrespectful behaviour in the context of self-defence?

Mr Everingham: If it's 100% self defence, but then, there's always options in my opinion. There's always options. There's options like for Mr Wiley to stay in the car, go round the other side of the car, there's options in that in that regard.

But - same token is, like, I've not been in that particular position. You haven't been in that position. I mean people have been in that position. So how people react, that's not really for me to say, but there's definitely always, there's another, always, alternative.

Mr Nash: So you were, obviously you were evaluating whether Mr Weule's actions constituted disrespectful behaviour. What would you consider to be a respectful way to defend yourself?

Mr Everingham: Just remove yourself, wherever you could. Remove yourself, best you can. There's all sorts, a hundred, there's so many other ways apart from, um, it may mean that yeah you might have to get punched unfortunately, but you can definitely, there are definitely other ways.

Mr Nash: So you're saying in some circumstances people should just cop a punch for the sake of not being disrespectful?

Mr Everingham: Disrespectful... for the sake of not escalating something, yeah.

Mr Nash: And you say that would be reasonable? Get a punch?

Mr Everingham: Get out of the road. Not go looking for it, yes.

• [155] Mr Everingham clearly had a very rigid and narrow view about whether self-defence could ever be available as a justification in circumstances where a person had hit someone. These exchanges fortify my view that Mr Everingham did not keep an open mind.

• [156] I am not here seeking to review Mr Everingham's finding or his decision to terminate Mr Weule's employment. The issue I am dealing with here is what Mr Everingham's actions reveal about whether Mr Weule had an opportunity to respond.

• [157] In light of the foregoing, Mr Everingham did not have an open mind, but formed an unshakeable view immediately following the altercation. Mr Everingham's having an open mind would have been necessary in order for Mr Weule to have been given a proper opportunity to respond.

• [158] Mr Weule was ostensibly given an opportunity to respond. But it was not a proper opportunity because Mr Everingham did not keep an open mind.

• [159] Mr Weule has been assisted through this process by officials of his union. There was no unreasonable refusal to allow him to have a support person present to assist at discussions relating to the dismissal.

• [160] As the dismissal did not relate to unsatisfactory performance, this consideration does not arise, and does not weigh in support of or against a finding that the dismissal was harsh, unjust, or unreasonable.

Size of the employer's enterprise, and whether dedicated human resource management specialists or expertise

• [161] Having regard to the foregoing, I find that the size of the Respondent's enterprise was not likely to adversely affect the procedures followed in effecting the dismissal, and that the Respondent's enterprise did not lack dedicated human resource management specialists and expertise.

• [162] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [163] The lack of evidence of any previous warnings, reprimands, or other discipline action, is relevant.

• [164] The failure to exercise care in the travel arrangements for Mr Weule and Mr Torcello following the incident may be relevant to the unreasonableness of the dismissal, in addition being relevant to the issue about regarding whether the investigator had kept an open mind. It is not a matter to be given any significant weight compared with the matters dealt with above.

• [165] Mr Weule's age, and the impacts of losing his direct hire job with the Respondent,[109] are relevant. The delay in providing a skills list, to assist Mr Weule in mitigating the loss suffered, is relevant.

• [166] The circumstances of Mr Weule being injured at work when a co-worker assaulted him is relevant. The Respondent's referral of Mr Weule to medical review, and the subsequent welfare check after the dismissal, are relevant. The extension of the Respondent's Employee Assistance Program for three months after the employment ended is relevant.

• [167] Findings have been made, as set out above, in relation to each matter specified in section 387 of the Fair Work Act. The Commission must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[110]

• [168] Having considered each of the matters specified in section 387 of the Fair Work Act, and for the reasons set out above, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. It was harsh in light of the circumstances of the altercation and the lack of any adverse disciplinary history. It was unjust because Mr Weule was entitled to defend himself rather than allow a co-worker to attack him, and his acts were proportionate and reasonable in the circumstances. It was unreasonable because there was no valid reason for termination or alternatively because of the failure to provide him with a proper opportunity to respond.

• [169] Being satisfied that the Applicant made an application for an order granting a remedy under section 394 of the Fair Work Act, was a person protected from unfair dismissal, and was unfairly dismissed, the Commission may order the Applicant's reinstatement, or the payment of compensation to the Applicant.

• [170] Under section 390(3) of the Fair Work Act, the Commission must not order the payment of compensation to the Applicant unless the Commission is satisfied that reinstatement of the Applicant is inappropriate, and the Commission considers an order for payment of compensation is appropriate in all the circumstances of the case.

• [171] I cannot be satisfied that reinstatement was inappropriate. There was no evidence of any adverse disciplinary history. Mr Hurley said Mr Weule was very experienced and he had a good working relationship with Mr Weule.[111] Mr Melvin considered Mr Weule to be good at his job and an experienced operator.[112] Under cross examination he said Mr Weule was really good at his job, and that he (Mr Melvin) got along well with Mr Weule. Mr Weule's representative asked him whether, if it had not been for the incident between Mr Weule and Mr Torcello, he would have been happy for Mr Weule to continue in his crew as an employee, and Mr Melvin agreed and said he did not have an issue with Mr Weule. Mr Holt, despite thinking Mr Weule had a short temper, considered Mr Weule was a very experienced worker who was good at his job.[113] Under cross-examination he said he got along well with Mr Weule, and agreed that if it was not for the incident between him and Mr Torcello, he (Mr Holt) would have been happy to have Mr Weule continuing as an operator. Mr Everingham thought Mr Weule was a very capable and experienced Operator and that he was good at his job.[114] He provided a transcript of Mr Weule's qualifications running to eleven pages.[115] Under cross-examination, when Mr Weule's representative put to him that he had said Mr Weule was good at his job, Mr Everingham said, "excellent," and that Mr Weule had been a valuable part of the crew. He said that if not for the incident he would have been happy for Mr Weule to continue.

• [172] Having regard to the foregoing I have decided to order the Applicant's reinstatement.

• [173] Subsection 391(1) of the Fair Work Act provides that an order for the Applicant's reinstatement must be an order that the Applicant's employer at the time of the dismissal reinstate the Applicant by:

• reappointing the Applicant to the position in which the Applicant was employed immediately before the dismissal; or

• appointing the Applicant to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.

• [174] Subsection 391(2) of the Fair Work Act provides that, if the position in which the Applicant was employed immediately before the dismissal is no longer a position with the Applicant's employer (as at the time of dismissal), and that position, or an equivalent position, is a position with an associated entity of the employer, the order for reinstatement may be an order to the associated entity to:

• appoint the Applicant to the position in which the Applicant was employed immediately before the dismissal; or

• appoint the Applicant to another position on terms and conditions no less favourable than those on which the Applicant was employed immediately before the dismissal.

• [175] I will hear from the parties as to the position to which the Applicant should be reinstated. Directions will be issued for that purpose.

• [176] Subsection 391(2) of the Fair Work Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain:

• the period of the Applicant's continuous service with the employer or, if applicable, the associated entity.

• [177] In all the circumstances, I consider it appropriate to make an order to maintain the Applicant's continuity of employment and period of continuous service with the employer. I will hear from the parties as to the form of the order. Directions will issue in that regard.

• [178] Subsection 391(3) of the Fair Work Act provides that if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to cause the employer to pay to the Applicant an amount for the remuneration lost, or likely to have been lost, by the Applicant because of the dismissal.

• [179] Subsection 391(4) of the Fair Work Act provides that, in determining an amount for the purposes of such an order, the Commission must take into account:

• the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

• the amount of any remuneration reasonably likely to be so earned by the Applicant during the period between the making of the order for reinstatement and the actual reinstatement.

• [180] An order to restore lost pay does not necessarily follow an order for reinstatement. The Commission may only make an order if it considers it appropriate to do so and only make an order that the Commission considers appropriate.[116] Where an employee has engaged in misconduct, the Commission may refuse to make any order to restore lost pay.[117]

• [181] I will hear from the parties as to the Applicant's loss since the dismissal and the form of an order for lost pay. Directions will issue for that purpose.

• [182] I am satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Fair Work Act, and I have decided that the Applicant should be reinstated, with orders as to continuity of employment and period of continuous service, and loss of pay. Directions will issue so that the parties can be heard as to the form and content of the orders.

A Nash of the Mining and Energy Union for the Applicant.

M Brooks of Counsel, instructed by Lander & Rogers, for the Respondent.

[2] Fair Work Act 2009, section 390

[3] Ibid, s 382

[4] Ibid, ss 385 and 390(1)

[5] Ibid, s 397

[6] Applicant's outline of submissions filed 20 December 2024, [34], citing Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, at [171]-[176].

[7] Applicant's outline of submissions filed 20 December 2024, [35], citing Newton v Toll Transport Pty Ltd [2021] FWCFB 3457, at [171]-[176], Culpeper v Intercontinental Ship Management Pty Ltd [2004] AIRC 261; (2004) 134 IR 243 at [49], and Fearnley v Tenix Defence Systems, Print S6238.

[8] Nsw Trains T/A Nsw Trainlink v Wael Al-Buseri [2023] FWCFB 165; 326 IR 215 at [28].

[9] citing John Whittaker v EDI Rail-Bombardier Transportation (Maintenance) Pty Ltd T/A EDI [2013] FWC 7908 at [7], and referring also to Criminal Code Act 1899 (Qld) s 271-272.

[10] Applicant's outline of submissions filed 20 December 2024, [37].

[11] Applicant's outline of submissions filed 20 December 2024, [38].

[12] Applicant's outline of submissions filed 20 December 2024, [43].

[13] Applicant's outline of submissions filed 20 December 2024, [44]-[45].

[14] Respondent's outline of submissions filed 14 January 2025, [11], [30].

[15] Respondent's outline of submissions filed 14 January 2025, [32]-[33].

[16] Respondent's outline of submissions filed 14 January 2025, [34].

[17] Respondent's outline of submissions filed 14 January 2025, [35].

[18] Respondent's outline of submissions filed 14 January 2025, [37].

[19] Respondent's outline of submissions filed 14 January 2025, [38]-[39].

[20] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[21] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[23] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[24] Sydney Trains v Trevor Cahill [2021] FWCFB 1137, [38], applying King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

[25] Tenix Defence Systems Pty Ltd v Fearnley Print S6238 (AIRCFB, Ross VP, Polites SDP, Smith C, 22 May 2000), [25], referred to with approval in Newton v Toll Transport Pty Ltd [2021] FWCFB 3457; 307 IR 140, [174].

[26] [2021] FWCFB 3457; 307 IR 140.

[28] Exhibit 5, annexure JRM1, 22-23, and annexure

[44] Exhibit 1, [19]; Exhibit 5, annexure JRM1, 22.

[47] Exhibit 1, [22] and annexure DW4; Exhibit 5, annexure JRM1, 22-23.

[49] Exhibit 3, [61]. Exhibit 5, annexure JRM1, 31.

[50] Exhibit 1, [24]-[25]. Exhibit 3, [66]; Exhibit 5, annexure JRM1, 31.

[51] Exhibit 1, [28] and annexures DW2 and DW4; Exhibit 5, annexure JRM1, 22-23

[53] Exhibit 1, [28]. Exhibit 2, [18].

[54] Exhibit 1, [29]; Exhibit 3, [73].

[93] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

[94] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[95] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].

[96] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

[102] Exhibit 6, [103]; Exhibit 2, [45].

[110] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].

[116] Aurora Energy Pty Ltd v Davison PR902108 (AIRCFB, Watson SDP, Williams SDP, Holmes C, 8 March 2001), [25].

[117] See, eg, Regional Express Holdings Ltd v Richards [2010] FWAFB 8753, [29].

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