Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Final Warning - Not satisfied subsequent alleged misconduct on 9 April and 6 September 2024 made out - Dismissal Unfair

• [1] On 30 April 2025, Mr Karl Mouat (Mr Mouat / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with OS MCAP Pty Ltd (the Respondent). The matter was listed for hearing on 11 and 12 August 2025. Directions were issued for the filing of submissions and parties filed further material.

• [2] Mr Luke Tiley of Hall Payne Lawyers was granted leave under s.596(2)(a) to appear on behalf of the Applicant and Ms Renee Kumar of Counsel was granted leave under s.596(2)(a) to appear on behalf of the Respondent.

• [3] The following people provided witness statements in this matter:

• • Mr Mouat, the Applicant, engaged as an Operator at the time of his termination provided an initial statement,[1] and reply statement.[2]
• • Mr Joshua Lowrie, Operator at Goonyella Riverside Mine.[3]
• • Ms Harriet Fredericksen, Operator at Goonyella Riverside Mine.[4]
• • Mr Zachary Bartley, Operator at Goonyella Riverside Mine.[5]
• • Mr Matt McLachlan, Machine Operator for the Respondent.[6]
• • Mr Ashley Sermaine, Field Officer at Goonyella Riverside Mine.[7]
• • Mr Brendan Janetzki, Field Officer at Goonyella Riverside Mine for the Respondent.[8]
• • Mr Rob Hanson, Production Manager at Goonyella Riverside Mine for the Respondent.[9]
• • Ms Karina Lynch, Principal Asset Improvement for the Respondent.[10]
• • Ms Leah Ross, Production Superintendent at Goonyella Riverside Mine for the Respondent.[11]

• [4] Ms Harriet Fredericksen was subject to an order to attend, and after the issuing of the order prepared her statement. Mr Zachary Bartley was also ordered to attend. That order was suspended following an urgent interlocutory hearing and Mr Bartley subsequently decided to provide his own statement.

• [5] The Applicant has been employed with the Respondent since 18 September 2020. On 26 February 2021, the Applicant became a Technical Specialist. He said he began working in the office on site at the mine.

• [6] The Applicant submits that there are three relevant incidents, an incident in January 2023 where a subsequent warning was issued, an incident in April 2024 and an incident on 6 September 2024. The two later incidents in April 2024 and September 2024 were the basis for the Respondents reasons for dismissal.

• [7] The Applicant submits that for the Respondent to succeed it must prove that all three incidents occurred and were misconduct for it to succeed.

• [8] The Respondents submits on 9 April and 6 September 2024 the Applicant behaved in an aggressive and intimidating manner toward Mr Kacey Brazier which was misconduct contrary to the Respondents policies. The Respondent submitted that each of their witnesses would attest to the Applicant losing his temper without warning or good reason leading to confrontations with colleagues and then persisting with those confrontations. The Respondents submitted that there were three other incidents involving persons other than Mr Brazier that tends to corroborate that the Applicant behaved in the way that the Respondent asserts.

• [9] Mr Janetzki said in his evidence that he formed a close friendship with the Applicant. The Applicant accepted he had spent a day with Mr Janetzki and his son on one occasion however the relationship did not really develop from that.

• [10] Mr Janetzki said in his statement that the Applicant had some anger issues, and he was trying to help the Applicant with that, especially while he was in the Technical Specialist role. The Applicant said Mr Janetzki was not a psychologist, and that would be the pot calling the kettle black.

• [11] Mr Janetzki said while the Applicant was working as a Technical Specialist, he saw him have a couple of outbursts, but he did not remember the dates. Mr Janetzki's evidence was that during those outbursts the Applicant became quite aggressive and yelled and screamed. He said he remembered one of the outbursts was directed at Mr Michael Stenning in the site office. Mr Janetzki said the Applicant got angry because Mr Stenning had been editing the wrong spreadsheet, which messed around with the work the Applicant was doing.

• [12] The Applicant accepted that he called people who were messing around with the spreadsheet useless, because they were calling his work useless. He said he was facing Mr Stenning when he said that. The Applicant said he made a mistake in that situation as had the others who called him useless, and they apologised to each other, and dealt with it, and moved on.

• [13] On 1 December 2022, the Applicant completed "Active Bystander" Training Modules 1 and 2. The training was a 2-hour presentation on how to approach people in the workplace, arming people with the skills to be able to intervene in public with people displaying unacceptable behaviour. From this training, the Applicant's evidence was he learnt how to communicate properly when there was conflict in the workplace. The Applicant said he did update Active Bystander training in 2023.

• [14] The Applicant agreed he maintained a fitness regime and had been an amateur boxer.

• [15] The Applicant's partner was also employed with the Respondent, and it was clarified in his evidence this romantic relationship commenced at the end of 2022. The Applicant's evidence was the relationship started soon after going out to work in the pit as a Loader Operator.

• [16] The Applicant's evidence was that during employment, his partner and by extension him, were subjected to inappropriate behaviour from other employees at the Mine including Mr Kacy Brazier. The Applicant said Ms Beard is now his fiancée. He said other workers at the mine would regularly make comments to him about his partner, and her ex-partner, her previous relationships and a sexually explicit video.

• [17] The Applicant submitted the two incidents on 9 April and 6 September 2024 with Mr Kacy Brazier for which the Applicant was dismissed occurred against that background. It is submitted the Applicant was seeking to intervene and to stop the mistreatment of his partner by Mr Brazier and others.

• [18] On 29 January 2023, the Applicant entered a crib hut where there were a group of workers including a Mr Shannon Fiddler. The Applicant said he and Mr Fiddler usually got along. He said they shared a passion for combat sports. He agreed they had met socially outside work.

• [19] On 29 January 2023 when the Applicant entered the hut, he said all conversation stopped, leading him to believe they had been discussing him or his partner. He said he was filling his water bottle and mumbled something under his breath to the effect of "that's convenient." He said it was a prolonged silence when he walked into the room. He accepted in his oral evidence they may not have been talking about him.

• [20] It was put to the Applicant that he had just had an accident on a machine he had been operating. He said he was not too sure if that was the same day. The Applicant agreed he did have an incident on a machine, but it was at slow speed. It was put to him he "banged his way inside" and that was why everyone stopped talking. It was the Applicant's evidence that Mr Fiddler said to him at that point "Are you talking to me?" The Applicant's evidence was that he felt that Mr Fiddler was aggressive in his response. The Applicant was referred to an anonymous EthicsPoint complaint made on 30 January 2023, and a complaint which was made by Mr Fiddler on 31 January 2023 in relation to the incident.

• [21] A verbal altercation occurred. The Applicant said he stood at a distance from Mr Fiddler, did not make any physical gestures of aggression and he said this kind of altercation was common at the mine site, without offence taken or the matter being escalated. The Applicant said after this incident he was careful with how he conducted himself at the mine and the conversations he had. The anonymous complaint and the complaint of Mr Fiddler, while differing in respect to what was said both indicate the Applicant spoke aggressively to Mr Fiddler.

• [22] Mr Fiddler did not give evidence at the hearing. Mr Fiddler's Ethics Point complaint included that the Applicant followed him out of the crib hut, wanted to fight him and made threats and claimed Mr Fiddler was talking about him. The Applicant denied he blew up and denied Mr Fiddler's version of what was said. The Applicant claimed he said to Mr Fiddler "don't talk to me in that tone of voice you cunt". The Applicant claimed they walked out of the crib hut together. The Applicant claimed Mr Fiddler fabricated the version of what happened outside. The Applicant also denied Mr Fiddler's claims that the Applicant was staring at him on the bus and muttering under his breath.

• [23] The Applicant was referred to notes from an interview incident with Mr Ashley Semaine of 9 February 2023 concerning the 29 January incident. The notes of Mr Semaine's version tend to corroborate the version in Mr Fiddler's written complaint. The Applicant accepted in his oral evidence he did have some "choice words" with Mr Fiddler outside and he didn't handle the situation with Mr Fiddler perfectly, however Mr Fiddler was his friend, so the language was more common between them and that was it.

• [24] The Applicant was asked about Mr Semaine's evidence that he did not feel safe to work with the Applicant. The Applicant gave evidence to the effect that he and Mr Semaine worked together frequently for a lengthy period after this incident. The Applicant accepted Mr Semaine was in the crib hut on the day in question.

• [25] The Applicant was referred to an Event Statement Form completed by Ms Shay-lee West which said Mr Fiddler said politely to the Applicant "were you talking to me bro?" and the Applicant spoke abruptly to Mr Fiddler and Mr Fiddler defused the situation. The Applicant was referred to an event statement from Mr William Franklin which gave a similar version to the statement of Ms West, and a statement from Ms Amber Howarth which gave a similar version to the statements of Ms West and Mr Frankin, and referred to the Applicant staring at Mr Fiddler on the bus with an angry expression.

• [26] The Applicant said he didn't handle the situation correctly and he was punished for that, and he was guilty of what he was punished for.

• [27] Mr Semaine was asked whether he had seen the two witness statements of the Applicant, and he said no. It was put to Mr Semaine that the event on 29 January 2023 occurred as explained by the Applicant and not him. He said that was correct, however it was my impression he did not understand the question properly as in answer the following question, he rejected the proposition that the Commission should prefer the Applicant's evidence over his. It was clarified in re-examination that he stood by his version of the event on 29 January 2023.

Additional Event recorded by Interviewer in February 2023

• [28] In relation to an additional event recorded by the interviewer, the Applicant said he was asked about the separate incident, which he said Mr Fiddler had raised about him where Mr Fiddler claimed the Applicant had said to him "Don't look at my missus' ass". The Applicant said it is hard to frame because Mr Fiddler is a very nice human being, however his defence of his partner was justified. The Applicant said there were other incidents that he said he let slide.

• [29] On 24 April 2023, the Applicant received a warning for the 29 January 2023 incident, which the Applicant contends he shouldn't have been disciplined for, including because the warning mischaracterised the finding of fact that was made by the Respondent. The Respondent characterised the incident as "threats of violence" and investigated, including standing the Applicant down from duty.

• [30] The Applicant said on 24 April 2023 he met with Mr Civello, the Production Manager and had the MEU Organiser Mr Miller with him for the meeting. The Applicant said he was given a letter titled "Investigation Findings - Final Written Warning" and he discussed the 29 January 2023 incident with Mr Civello. The Applicant said he denied having physically threatened Mr Fiddler and Mr Civello agreed to replace the words "threat of violence" in the findings with "Karl had used tone and swearing."

• [31] The Applicant said he had since read the investigation report and Mr Civello did not replace the words "threat of violence" and instead added the words "tone and swearing" after the words "threat of violence". The Applicant said while he did not believe he should have been disciplined because of the incident, he learnt from it, and he became very careful with others at the mine. It was put to the Applicant that the letter handed to him included the words "tone and swearing". He responded that it had been agreed the words "threats of violence" would be removed.

Training as a Loader Operator and others making comments about his partner

• [32] The Applicant began training as a Loader Operator to work in the pit (the production environment) outside of the onsite office. The Applicant said he was trained by Mr Greg Fowler, a Grader/Dozer operator, and Mr Fowler was good friends with Mr Brazier.

• [33] The Applicant said shortly after finishing his training with Mr Fowler, both Mr Fowler and Mr Brazier began making the same kinds of comments other workers at the mine were making about his partner, her ex-partner and himself. He said it would rarely happen as direct comments to him but would happen as comments made to other people when he was in earshot of either Mr Fowler or Mr Brazier. It is unnecessary to repeat the alleged comments other than to say they were sexual in nature.

• [34] In response to a question in cross examination, the Applicant said he did confront other employees who had made comments about his partner including Mr Semaine and Mr Fiddler. The Applicant was asked whether he or his partner ever spoke to the police about the alleged existence of a video which the Applicant referred to as "revenge porn". The Applicant said he spoke to his partner about it, however his partner did not want to make a complaint without concrete evidence.

• [35] The Applicant claimed he had been told by another female employee that the video was being shared by other employees.

Early 2024 Conversation with Blackadder and Johnston about issues regarding his partner

• [36] At the start of 2024, the Applicant said he had a conversation with Ms Taylin Blackadder and Mr Treymane Johnston, two supervisors at the mine, about the issues regarding his partner. He said he asked both to intervene to stop the behaviour. The Applicant's evidence was after having reflected on the interaction with Mr Fiddler and the skills learnt in the Active Bystander training, he decided to speak with his supervisors about having a pre-meditated conversation with Mr Brazier.

• [37] The Applicant said he had spoken to Ms Blackadder and Mr Johnston multiple times about the harassment of himself and his partner. He said he never elaborated on the details because of their salacious nature, as he did not want to add any more rumour or demeaning remarks about his partner in the open forum of the office. The Applicant's evidence was on one occasion, Mr Johnston told him that he was aware of Mr Brazier, Mr Fowler and others' behaviour but without any proof or people coming forward he couldn't do anything.

• [38] It was put to the Applicant that he did not make specific allegations to his supervisors. The Applicant said he was trying to keep some dignity for his partner in the process. He said he knew having worked in the office that information flows from the office to the pit.

9 April 2024 conversation between the Applicant and Brazier

• [39] The Applicant said that on 8 April 2024, as the behaviour had not stopped, he had a conversation with Ms Blackadder and Mr Johnston and told them he would speak to Mr Brazier about his behaviour. After the 29 January 2023 incident with Mr Fiddler, Ms Blackadder and Mr Johnston expressed concern about how the conversation would be handled, but after explaining that he had matured and felt he was able to deal with the problem in line with the Charter of Values, Ms Blackadder and Mr Johnston said they trusted and believed in him and gave him permission to have the conversation with Mr Brazier.

• [40] On 9 April 2024, the Applicant said he was getting on the bus at the camp to go to the pit. Mr Brazier was on the bus and made a comment to another colleague about the Applicant's skills as an operator. The Applicant's evidence was he had not previously heard Mr Brazier so clearly or heard him so closely in the previous times he had made comments of that kind.

• [41] The Applicant said he decided that day would be the day to speak to Mr Brazier because he thought Mr Brazier was getting bolder in his behaviour. He said he felt it was important to tell Mr Brazier that he would not accept his behaviour. He agreed on this occasion the comments of Mr Brazier were directed at him not his partner.

• [42] The Applicant was challenged on why he did not make specific allegations about Mr Brazier's conduct toward himself. The Applicant initially said he was struggling with being a "dobber", however also said he felt he was strong enough to deal with the conduct directed at himself, however, would not put up with what was happening to his partner.

• [43] That morning, the Applicant initiated a text exchange asking to speak to Mr Brazier, which Mr Brazier accepted, and these text messages were set out in his evidence. Later in the shift, the pair had a conversation outside of the crib hut next to the go line. The Applicant's evidence was that he confronted Mr Brazier about comments made that morning and earlier, and Mr Brazier denied them, and they parted. The Applicant set out in his statement his recollection of what was said.

• [44] In his Show Cause response, the Applicant said in relation to this issue that throughout the conversation with Mr Brazier that day, he calmly stated that Mr Brazier must cease talking about his partner and himself in such a manner. The Applicant accepted that Mr Brazier denied what the Applicant was saying to him. The Applicant said he heard the comments Mr Brazier had made about himself that very morning.

• [45] The Applicant's evidence was that after that conversation, he and Mr Brazier got into a vehicle together. He said there were no further incidents and the two didn't interact other than necessary for work. Shortly after, they were also on different roster cycles. The Applicant said he felt that Mr Brazier had taken on board what he had said.

• [46] It is not in dispute that Mr Brazier did not make any complaint about the Applicant's conduct on 9 April until after the 6 September incident.

• [47] Mr Semaine said in early 2024, he was at the Kentucky crib hut waiting for the bus with a group of colleagues and he saw the Applicant approach Mr Brazier and ask him to talk privately.

• [48] Mr Semaine said the Applicant and Mr Brazier walked about 50 meters away from the crib hut, and shortly after this, he started to hear the Applicant's voice rising. He said he was too far away to hear exactly what was being said, but he could make out some swear words.

• [49] Mr Semaine said in his statement that the Applicant was getting heated, yelling and swearing at Mr Brazier. Mr Semaine said the Applicant was about half a meter away from Mr Brazier, getting in his face, leaning forward and pointing at him, while Mr Brazier was quite subdued, and seemed a bit taken aback. Mr Semaine said Mr Brazier tried to walk away from the conversation a couple of times, but the Applicant kept getting in his way and continuing to talk at him, and the whole interaction went for about six or seven minutes.

• [50] Mr Semaine said it ended when the bus turned up at the crib hut to pick them up. Mr Semaine said he didn't report this incident to anyone. He said he couldn't hear what was being said, so he said he left it to the Applicant and Mr Brazier to figure it out.

• [51] It was put to Mr Semaine that the events on 9 April occurred as explained by the Applicant and not him. He answered yes. It was put to Mr Semaine that he was not present at the incident on 9 April 2024. He said he was. He agreed he could not hear what was said and could only see from a distance. He agreed Mr Brazier could have been swearing at the Applicant, but he couldn't know because he couldn't hear.

• [52] It was put to Mr Semaine that despite having said he couldn't hear, he said (in his statement) he could hear the Applicant swearing. He then said in his oral evidence he could hear loud voices and two people swearing at each other and he could see the body language and that they were having an argument. Mr Semaine agreed his statement did not record Mr Brazier swearing at the Applicant.

• [53] It was put to Mr Semaine that he was a partisan witness trying to favour the position of the Respondent. He said he couldn't hear the conversation, but he could hear the swearing going on between them. It was put to Mr Semaine the Applicant's version of 9 April should be preferred over his because he was not a witness to the whole of the incident, and at best he could see but not hear. He agreed with that proposition.

• [54] There was some re-examination of this answer however in my view Mr Semaine's responses in re-examination did not disturb his acceptance that the Applicant was in a better position to give evidence regarding this event then he was.

• [55] The Applicant agreed that Mr Hanson had assisted him by allowing him to continue working with machinery at the mine after his drivers license had been suspended.

• [56] Mr McLachlan gave evidence that in or around August 2024 at roughly 5:35am he was waiting at a bus stop with the A crew and the Applicant, and his partner were also waiting at the bus stop. Mr McLachlan said the Applicant got on the same bus as him and his partner got on another bus. While going through the pre-start, Ms Blackadder asked those on the bus to name five crew commitments, the first four being one-word answers, and the last one being a sentence long. Mr McLachlan said he made a comment to the effect of "that was long winded" to which Ms Blackadder said, "I'm pretty sure (the Applicant's partner) came up with that one", and Mr McLachlan replied "of course she did". Mr McLachlan said he did not mean any disrespect to his partner.

• [57] Mr McLaughlan gave evidence that after they got off the bus the Applicant appeared agitated and was pacing back and forth. Mr McLachlan said the Applicant came over to him and asked to speak in private. Mr McLachlan said the Applicant said to him that he did not appreciate the comment Mr McLachlan made about the Applicant's partner and he was visibly agitated and pacing. Other words were exchanged and Mr McLaughlan said he apologised, and the Applicant calmed down to a degree and they shook hands. The Applicant said in his oral evidence the tone of Mr McLachlan's comment about his partner was condescending and facetious. The Applicant said he did not perceive it as a just a joke.

• [58] Mr McLaughlan gave evidence that he saw the Applicant go and speak to Ms Blackadder and he still looked agitated.

• [59] The Applicant gave evidence that he had started keeping file notes of various instances relating to inappropriate conduct directed at his partner. However, he said he eventually decided to delete these file notes, except for one.

• [60] The Applicant was asked why he did not provide the file notes to Mr Hanson. His evidence was he only had one file note left around the time a Ms O'Brien came forward as a third party to corroborate the statements.

• [61] Mr Hanson said the Applicant contacted him in late August 2024 about some harassment he alleged was going on in the A crew. Mr Hanson said he was prepared to listen to and investigate the Applicant's concerns. However, the Applicant would not give him details about what had happened, but he said he had arranged for Mr Hanson to have a telephone call with someone who could give him some information, but who wanted to stay anonymous. Mr Hanson said he received a text from the person on 28 August 2024, in which they requested to call him to give him a statement in relation to the Applicant and his partner.

• [62] Mr Hanson said he arranged to call the person on 30 August 2024 at 10:00 am. Mr Hanson said the person did not answer the phone and he later saved the phone number to his contacts as 'Mechell' in or around September 2024 after the person texted him in relation to taking maternity leave and disclosed her name in that text.

• [63] On 30 August 2024 at 10:15 am, Mr Hanson said he received a text from the Applicant advising he had decided not to move forward with the complaint.

• [64] The Applicant confirmed during his oral evidence that the person who was going to provide the information to Mr Hanson was Ms Michelle O'Brien, a Water Cart Operator. It was put to the Applicant that Ms O'Brien had told the Applicant there were two instances where she had heard Mr Brazier making comments about the Applicant's partner. The first was regarding a statement about the Applicant's partner walking nude in front of Ms Amanda Cobb and others that shared her accommodation.

• [65] The Applicant said they were worried about Ms O'Brien as she was pregnant at the time, and after all the pressure he and his partner had been through, maybe it was not right to subject Ms O'Brien to that.

• [66] The Applicant said after discussing it with Ms O'Brien it was decided not to go ahead with the complaint at that time. The Applicant said it was subsequently discussed that an Ethics Point would be raised by him, and Ms O'Brien could come forward at that time. The Applicant said he was apprehensive, and he was also concerned about the others.

Ross' conversations with the Applicant before 6 September 2024 Incident

• [67] Ms Ross' evidence was while she had a good working relationship with the Applicant, her observation was that he could get easily frustrated with people. She said the second time the Applicant was filling in as Technical Specialist was from 5 September to 11 September 2024.

• [68] She said shortly before this, the Applicant's supervisor, Mr Tremayne Johnson, had told her that the Applicant had been having issues with Mr Brazier and Mr Fowler. Ms Ross's evidence was Mr Johnson told her the Applicant was not prepared to tell them what the issues were.

• [69] Ms Ross said in or around early September 2024, she asked the Applicant at least three times what the issue was and who was involved. The Applicant would make remarks about people "backstabbing" and talking about him and his partner.

• [70] Ms Ross said she asked the Applicant to tell her who was involved in the behaviour or who witnessed it so that it could be put into Ethics Point and investigated, but he refused to tell her. Her evidence was she told the Applicant that she couldn't investigate the allegations or stop the behaviour if she didn't know who the people were, and what they were doing or saying. She said the Applicant told her words to the effect of "I want to solve it in my own way".

• [71] The Applicant said he gave a general context (to Mr Johnson and Ms Ross), and he thought that it would have been enough for them to speak to Mr Brazier directly and not just have a general conversation in a team meeting. He said he did say there had been bullying, harassment and sexual harassment.

• [72] On 5 September 2024, the Applicant said he had a conversation with Ms Michelle O'Brien, about how he and his partner were viewed at work, what was happening to them and what was being said about them. His evidence was that Ms O'Brien revealed to him Mr Brazier had been talking about his partner again to different groups of people. After the conversation with Ms O'Brien, the Applicant said he decided to intervene again as an Active Bystander. He said he made that decision because the conversation with Ms O'Brien was, at last, a concrete example from another person confirming what he and his partner were experiencing.

• [73] Mr Bartley's evidence was he was aware that he was ordered to attend the hearing, and he subsequently made a witness statement dated 6 August 2025. Mr Bartley gave evidence that he worked with the Applicant on A crew and he was a good worker and there were never problems between them. Mr Bartley said the culture on A crew was terrible and Mr Fowler and Mr Brazier would bully and harass himself and another operator on A crew. He said they would make comments about him indirectly on the radio. He said the other operator and himself subject to Mr Fowler and Mr Brazier's mistreatment transitioned from A crew to C crew at the same time for the same reasons. Mr Bartley said the Applicant never participated in this culture.

• [74] On 6 September 2024, at the end of the Applicant's Day shift, his evidence was he was walking to go get dinner back at camp, and Mr Brazier and Mr Fowler were sitting together with Mr Janetzki at the bus stop on their way to the pit for night shift.

• [75] Mr McLachlan's evidence is that he was sitting at a picnic table about 8 metres away from the bus stop. Mr McLachlan's said he could see Mr Fowler, Mr Brazier and another person that he was not familiar with sitting at the bus stop.

• [76] Mr Lowrie's evidence was he and Ms Fredericksen were sat down at one of the benches at the bus stop. To the right, 4 or 5 metres in front of Ms Fredericksen and him, Mr Brazier was sitting down with some other people that he didn't know at the time. In his contemporaneous event statement form he said he sat down approximately 10 metres further down the bus stop. He agreed Ms Fredricksen was standing in front of him with her back to them. Mr Lowrie agreed that heard about 20% of the conversation word for word.

• [77] Ms Fredericksen gave evidence she estimated the Applicant worked with her on C crew for about a year, and she had no issues with the Applicant while he worked on C crew. Ms Fredericksen's evidence was the Applicant was behind her when she was walking back to camp, and she stopped to talk to a coworker. Ms Fredericksen said Mr Brazier and Mr Janetzki were sitting with some other A Crew member behind where she stood talking. Ms Fredericksen said she was side onto them.

• [78] The Applicant said he was aware that Ms Fredericksen was present at the incident and had told the investigator she was there and expected her to be interviewed. The Applicant said Mr Tim Span had told him Ms Fredericksen had put in a statement. The Respondent's representative raised a concern that the Applicant had given evidence that Mr Span had given him the statement, but this was not his evidence.

• [79] The Applicant said as he walked past, he saw Mr Brazier, who was wearing sunglasses, and he said he noticed that Mr Brazier's head followed him as he walked. Mr Brazier did not wave at him or acknowledge him in any way. The Applicant said he just held the stare in his direction. The Applicant said he looked at Mr Fowler, who acknowledged him with a head flick, and he looked back at Mr Brazier, who's head continued to follow him as he walked past.

• [80] The Applicant's evidence was he walked just past the drink machine and said to himself "that's it, I'm over it. I'm going to talk to him." He turned around to look at Mr Brazier, but Mr Brazier ignored him. He said Mr Brazier ignoring him made him think "maybe this isn't a good idea" as interaction with him could be seen as confrontation. The Applicant said this was the last day he would see Mr Brazier before going on the opposite crew and he would take this opportunity to talk to him.

• [81] On the Applicant's evidence, about 2 or 3 metres away from the group, he decided to have the conversation another time, and he walked past the group, at which point they all start laughing. He said he turned around to see why they were laughing and walked toward Mr Brazier so that they were about one and a half to two metres away from each other. The Applicant agreed during the oral evidence that it was the laughing that triggered him to change his mind and approach Mr Brazier. He went on to say it was when Mr Brazier said to him "What's your problem Karl" that made him decide to have the conversation. It was put to the Applicant this was not what his statement said. The Applicant agreed he assumed they were laughing at him. The Applicant's record of the conversation in his statement is as follows:

KM: "Why is it always me the problem, Kacy. How come it's not you?"

KM: "I'm here to tell you that people are coming forward and saying that you are continuing your behaviour that you agreed not to do."

KB: "Bullshit, it's all lies, Karl. You are a liar. No one likes you. Everyone hates you. You are not mentally stable."

• [82] Mr Janetzki said he noticed the Applicant started to angrily pace backward and forwards, moving his shoulders. He said the Applicant was walking past and stopped near the group and was standing very close to Mr Brazier. Mr Janetzki's evidence was you could probably only have fit one person in between them. Mr Janetzki said he was unaware that the Applicant had a different version of the incident to him. Mr Janetzki said he felt the Applicant handled the situation on 6 September better than he had in the past.

• [83] Mr Janetzki said he could see the Applicant was trying to handle the situation. Mr Janetzki was referred to text messages he exchanged with the Applicant immediately following the incident on 6 September and agreed he sent the text messages that included the words "...clearly Kacey is not going to be civil...". Mr Janetzki also agreed he sent the text to the Applicant that included "...You handled it alright considering he was being difficult." Mr Janetzki claimed during his oral evidence he sent these messages because he didn't want the Applicant to think he was taking sides.

• [84] Mr Janetzki was referred to his event statement form completed on 6 September 2024. It was put to him that it did not say that the Applicant was aggressive or intimidating and he would have included that because he understood the document had to be accurate. Mr Janetzki's answer was somewhat ambiguous.

• [85] Mr Janetzki agreed that Mr Brazier's voice was raised during the incident. Mr Janetzki agreed the Applicant appeared upset. Mr Janetzki did not agree that other employees were trying to rile the Applicant up. Mr Janetzki toward the end of his evidence, said this event happened a long time ago and he couldn't recall why he wrote what he wrote and was trying to recall to the best of his recollection. Mr Janetzki ultimately agreed with the proposition that his first statement was more accurate.

• [86] It was put to Mr Janetzki the text messages cannot be reconciled with the statement he filed in the proceeding, and that his witness statement was exaggerated, dramatized, confected and manipulated to suit the case of the Respondent. He rejected those assertions.

• [87] Ms Fredericksen's evidence was the Applicant stopped to talk to Mr Brazier as the Applicant had heard something that was said about him from Mr Brazier and stopped to ask what was said. Ms Fredericksen said she heard a voice that she recognised to be the Applicant's say words to the effect of:

• [88] Ms Fredericksen said she then heard a voice she recognised as Mr Brazier's say words to the effect of:

• [89] Ms Frederickson said Mr Brazier's voice was raised so she turned around to see what was happening. Ms Frederickson said the Applicant stood a normal conversational distance away from Mr Brazier who was staring at him. Ms Frederickson said the Applicant appeared upset about what he believed Mr Brazier had said about him.

• [90] It was put to Ms Fredericksen that the Applicant must have raised his voice first because his was the voice she heard first. Ms Frederickson said it was louder than normal conversation but not aggressively.

• [91] Mr McLachlan said he could not hear the incident. Mr McLachlan's evidence was he saw the Applicant walking up to the walkway to where Mr Fowler, Mr Brazier and the other person were sitting. Then he saw the Applicant say something to Mr Brazier that he couldn't hear. He said the Applicant walked over to Mr Brazier and stood within touching distance of him. The Applicant's back was to Mr McLachlan, but said he could see the front of Mr Fowler, Mr Brazier and the other person. His evidence was he could see Mr Brazier was laughing. Mr McLachlan agreed that the Applicant stood a normal conversational distance from Mr Brazier. He also agreed the Applicant appeared upset. He later said he believed the Applicant and Mr Brazier were about half a metre apart.

• [92] Mr Lowrie said he noticed the Applicant walk in front of him and Ms Fredericksen and approach Mr Brazier, who was sitting down. His evidence was the Applicant was stood about 1.5 metres away from Mr Brazier and asked to speak with him privately.

• [93] Mr Lowrie's evidence was Mr Brazier immediately raised his voice and declined to go with the Applicant. Mr Brazier got heated and called the Applicant a psycho. In his contemporaneous event statement form, Mr Lowrie said he did notice that the Applicant was trying to have the conversation in private and he only heard the words because Mr Brazier was yelling at the Applicant, and it was getting heated.

• [94] Mr Lowrie said in his contemporaneous statement that Mr Brazier chose to swear and yell at the Applicant in front of a lot of people.

• [95] The Applicant said he asked Mr Brazier again about the comments he'd been making after their last conversation where the Applicant thought there had been an agreement to stop. Mr Brazier called him mentally unstable, delusional and crazy. The Applicant's evidence was he continued to ask Mr Brazier to come and speak to him privately and Mr Brazier refused.

• [96] Mr Janetzki said after the Applicant had walked back and forward in front of the group a couple of times, Mr Brazier asked him something like "What's going on?" The Applicant walked over to where the group were sitting at the bus stop and asked Mr Brazier to have a private conversation. Mr Brazier told him no. Mr Janetzki said the Applicant was adamant about going somewhere else for a conversation with Mr Brazier, and that he didn't want to have the conversation at the bus stop in front of the group. The Applicant kept asking Mr Brazier to go with him, and Mr Brazier kept saying no. Mr Brazier said something like the Applicant was "unstable" and that he wouldn't talk to him in private because he wanted witnesses to their conversation.

• [97] Mr Janetzki said it seemed like the Applicant was trying to be calm and not blow up, but he was struggling to contain himself. He kept asking for a private chat, refusing to accept Mr Brazier's refusal. As it went on, he was getting louder and more aggressive. Mr Janetzki said Mr Brazier, Mr Fowler and he stayed seated throughout the confrontation, and the Applicant was standing over the top of them. He said the Applicant was speaking very loudly and aggressively in the way he was pronouncing his words.

• [98] Mr Janetzki agreed that Mr Brazier said unpleasant words to the Applicant but did not agree he called the Applicant a psycho. Mr Janetzki said it was when Mr Brazier called the Applicant mentally unstable that this wasn't going to help and should end now. Mr Janetzki agreed Mr Brazier calling the Applicant mentally unstable was making the Applicant upset. Mr Janetzki agreed he would not have liked to have been the recipient of those comments. He said it was not right for Mr Brazier to have called the Applicant mentally unstable.

• [99] Mr Bartley said the bus stop had two sets of benches. He said on one side is a table where the smokers sit and he was at the smokers' side. He said Mr Fowler and Mr Brazier were on the other group of benches. He said he was having a conversation with someone, and he doesn't remember what the conversation was about or with whom.

• [100] Mr Bartley said at some point he started to hear raised voices, and he turned around and saw Mr Brazier and the Applicant in conversation. He said the Applicant was standing about a metre and a half away from Mr Brazier who was sitting down.

• [101] Mr Bartley said he did not understand the substance of much of the conversation, but he distinctly remembers the Applicant saying words to the effect of: "It's not what I asked you to do, it's what I asked you not to do." Mr Bartley said the Applicant was using normal hand gestures and was clearly upset about what he was talking to Mr Brazier about. Mr Bartley said he thought it was a heated argument, but he did not think that anything more would happen.

• [102] Mr Bartley said the Applicant at no point closed the distance between himself and Mr Brazier. Mr Janetzki did not disagree with Mr Bartley's evidence on this point. Mr McLachlan said the Applicant and Mr Brazier were a very consistent distance apart. Mr Bartley said Mr Brazier said to the Applicant words to the effect of: "You're not fit fort work, you're mentally unstable." Mr Bartley said he felt Mr Brazier was trying to get a rise out of the Applicant. Mr Janetzki did not agree Mr Brazier said to the Applicant he was not fit for work but agreed he said that the Applicant was mentally unstable.

• [103] Mr Bartley agreed that he was 10 to 15 metres away. He said the area around them was relatively quiet. He agreed that the Applicant's voice was raised, but he did not believe he was aggressive. Mr McLachlan agreed it was hard to tell whether the Applicant was upset or angry given he couldn't hear what was said.

• [104] Ms Fredericksen's evidence was she honestly believed the Applicant was simply asking a question and Mr Brazier was talking back but wasn't giving the Applicant any answers. Mr Brazier appeared to be trying to annoy the Applicant more and stir him up. The Applicant was getting a bit upset over it and asked why he'd been saying it.

• [105] Ms Fredericksen's evidence was that she believed the Applicant was trying to have a calm grown up conversation about it but was being unnecessarily stirred up. She said if the conversation was had straight to the Applicant with the problem, instead of talking shit about him to people at work, there wouldn't have been a problem in the first place. She said she didn't believe the Applicant had any bad intentions he just wanted to have a mature conversation, but it may not have been the best place to have it.

• [106] Ms Fredericksen agreed that she had said to a solicitor for the Respondent prior to her making a witness statement, that Mr Brazier had stood up during the conversation with the Applicant. It was put to her that no other witness said that. Ms Fredericksen said that was her recollection. Ms Fredericksen accepted the incident was a long time ago and her recollection of the incident was not the best. Ms Fredericksen said she took the photo of the Event Statement Form she filled out on the day she handed it in on 9 September 2024.

• [107] Mr Lowrie said it appeared to him that Mr Brazier was trying to get a rise out of the Applicant in front of the other workers. Mr Brazier's raised voice and tone indicated he was taunting the Applicant. Mr Brazier did not use words to de-escalate at all, and Mr Brazier was bullying the Applicant and this treatment caused the Applicant to get upset. Neither the Applicant nor Mr Brazier were standing down. However, at no point was the Applicant aggressive or angry. Mr McLachlan said that the Applicant looked angry but was not physically aggressive.

• [108] Mr Lowrie accepted that Mr Brazier was sitting down during the exchange. Mr Lowrie said Mr Brazier raised his voice first, and the Applicant was moderate but raised his voice in response to Mr Brazier.

• [109] Mr McLachlan's evidence was he could see there was a back and forth between Mr Brazier and the Applicant. It seemed like Mr Brazier was laughing at him which seemed to agitate the Applicant further. Mr Brazier was shaking his head and doing hand motions that suggested he was saying "no" to something the Applicant was saying. Mr Brazier remained seated throughout the interaction. Mr McLachlan did not disagree with the suggestion that other workers were intervening in the conversation between the Applicant and Mr Brazier to try to rile him up.

• [110] Mr McLachlan was asked whether he agreed with Ms Fredericksen's evidence that the Applicant did not do anything wrong. Mr McLachlan said he could not hear what the Applicant said so he can't say the Applicant did anything wrong.

• [111] Mr Janetzki said he could tell that the conversation wasn't going anywhere and was worried that if he didn't intervene, the Applicant would get more aggressive. He said he knew that Mr Brazier has a background in Brazilian jujitsu and the Applicant also has some martial arts training. They are both large men and similarly-sized. Mr Janetzki said he was worried things would get physical if it continued to escalate, so he said words to the effect of "let's leave this here and separate it".

• [112] Ms Fredericksen's evidence was that another A Crew member interjected and said they were going to stand in and that was enough for now. She said Mr Brazier then yelled at the Applicant then Ms Fenton intervened. It was put to Ms Fredericksen that Mr Lowrie gave evidence he was 10 metres away and Ms Fredericksen said she did not know.

• [113] The Applicant said he was not badgering Mr Brazier, and he was more alluding to the fact that what was happening was not conducive to an outcome. The Applicant was challenged about whether the Active Bystander training permitted someone to ask a person multiple times to have a private conversation after they have said no. He said the training does not mention asking someone multiple times, however, he said to call it badgering was a matter of perspective.

• [114] After a few minutes, Mr McLachlan said he saw Ms Sharnelle Fenton quickly walk over from behind Mr Brazier to the group and step between Mr Brazier and the Applicant. Mr McLachlan said he did not hear what was said, but she walked the Applicant 20 metres away between M and N Block. He said he could see she was trying to calm him down and defuse the situation. Her hands were motioning in a way that he took to mean "don't go back over there" and "let it go".

• [115] The Applicant was asked why he did not accept Mr Brazier's refusal to engage in a private conversation. The Applicant said he was particularly embarrassed, and he felt degraded in front of others, and he wanted to have the conversation in private. It was put to the Applicant that he said to Mr Brazier that he was scared, and his lip was quivering. The Applicant denied saying "your so scared". The Applicant said he noticed this as well in the first conversation (in April) and that when the Applicant raised his partner, Mr Brazier's lip started quivering, and he asked him why his lip was quivering. The Applicant said he took it as a sign Mr Brazier was lying.

• [116] The Applicant's evidence was that at this point, Ms Fenton, a Field Officer, came up to Mr Brazier and the Applicant and took the Applicant aside and away from the interaction. As they were walking away, Ms Fenton and the Applicant had a conversation to the effect that there was not any point in him talking to Mr Brazier any further.

• [117] The Applicant's evidence was he then told his partner what had happened, and they decided to call Ms Leah Ross, the Superintendent. The Applicant said he gave Ms Ross his version of events, particularly about how he acted in compliance with the Charter of Values. His evidence was he told her that he expected Mr Brazier to raise an Ethics Point and that he was going to as well. Ms Ross indicated that there would likely be an investigation and said Mr Brazier had already approached her about the incident.

• [118] Mr Bartley said the conversation did not appear to start heated, but Mr Brazier's reactions made it so. Mr McLachlan said he potentially agreed with this. Mr McLachlan agreed that those closer to the incident would have more reliable evidence about the incident then them.

• [119] Ms Ross' evidence was on 6 September 2024, she finished work at around 5pm and about 30 minutes later, had a missed call from the Applicant.

• [120] A short time later, Ms Ross said she received a phone call from one of the supervisors, Ms Taylin Blackadder. Her evidence was Ms Blackadder said that the Applicant had gotten into an argument with Mr Brazier at camp.

• [121] Ms Ross' evidence was she then rang Mr Andrew Gilloway, Production Coordinator. He was still in the office at site when Mr Brazier and the other A Crew employees got off the bus. Mr Gilloway said he had spoken to Mr Brazier briefly, who had said he had gotten into a heated argument with the Applicant.

• [122] Ms Ross said after she got off the phone to Ms Blackadder and Mr Gilloway, she rang the Applicant. The Applicant told her that after finishing work, he walked past the bus stop and Mr Brazier had been staring at him. The Applicant said he kept walking, but heard Mr Brazier say something, so he turned around and said words to the effect of "What's your problem, Kacy?' The Applicant said Mr Brazier then called him "mentally unstable" and said words to the effect of "no one likes you".

• [123] Ms Ross' evidence was she could tell the Applicant was riled up while he was talking to her on the phone, he was talking quickly, and saying words to the effect of "I shouldn't have to put up with this, I've had a gutful of it. He is slandering my partner and if he had made a comment like that in my early days, I would have punched him". Ms Ross said she told the Applicant she was glad that he didn't punch Mr Brazier. By then, the Applicant had calmed down slightly, so Ms Ross told him she would speak to him in the morning and ended the call.

Post incident commencement of investigation by Ross

• [124] After the 6 September incident, the Applicant said he and Mr Brazier continued to work on the same crew and continued their professional relationship but there was no unnecessary chatting or banter.

• [125] Ms Fredericksen said on the afternoon of 7 September 2024, Mr Jake Anderson, a supervisor, came up to speak to her when they were about to walk out of the SAC Gates for the end of shift and asked if Ms Fredericksen would like to write a statement about the incident at the bus stop and she refused. However subsequently, she gave a statement on 9 September.

• [126] On or around 7 September 2024, the Applicant gave a statement to Ms Ross about what had happened on 6 September 2024, indicating that the conflict was bigger than the one interaction. Ms Ross said that it could be either a Category A or Category B incident under the Charter of Values.

• [127] Sometime after, Ms Ross asked the Applicant if he wanted a third party to handle the investigation, which he indicated yes.

7 September Second Event Statement form from Brazier relating to 9 April 2024

• [128] On 7 September 2024, Ms Ross said after completing her usual handover with supervisors and general morning duties, she called Mr Brazier to check in on him and to request a statement from him. Later that day, she received a second Event Statement Form from Mr Brazier concerning an incident that occurred between himself and the Applicant on 9 April 2024.

• [129] Ms Ross' evidence was she then called the Applicant and asked him to give her a statement in writing. She told him the September incident was going to be raised in Ethics Point and that the Ethics team would determine whether it was a Category A or Category B. During the call, the Applicant raised the issues in relation to Mr Brazier and his partner. Ms Ross said she encouraged the Applicant to make a complaint through Ethics Point. Ms Ross said the Applicant made a comment that he didn't want an investigator going through his private life and his relationship, but he would be happy to speak to someone who was not based at Goonyella.

• [130] Mr Hanson's evidence was in or around September 2024, Ms Ross told him that she had entered an Ethics Point case into the system, which concerned allegations against the Applicant. After reviewing the allegations against the Applicant, Mr Hanson said he talked to the General Manager Mr Grant Costello about removing Ms Ross from the investigation. Mr Hanson said he made this decision because he thought Ms Ross might be too close to the incident. The Applicant had previously made allegations to Ms Ross about derogatory comments against his partner, and according to Ms Ross, the Applicant had become quite emotional.

• [131] Mr Hanson's evidence said he had a concern that Ms Ross could be biased in favour of the Applicant because of that prior history. Mr Hanson said he also made this decision because Ms Ross had not been in the Superintendent position at the Respondent for very long, and so did not have a lot of experience with conducting investigations.

• [132] On 8 September 2024, Ms Ross said she raised a Line Leader Report on harassment and bullying or disrespectful behaviour - intimidating or aggressive behaviour in Ethics Point, on behalf of the Applicant. Ethics Point is a tool employees of the Respondent can use to report incidents of misconduct. At this point, Ms Ross said she did not feel a need to stand the Applicant down. The chance of the Applicant encountering the people involved was low because he was on day shift and they were on night shift, although there was still some risk they could cross over.

• [133] On 9 September 2024, Ms Ross said she received a written statement from the Applicant.

• [134] Ms Fredericksen was asked who she gave her Event Statement Form attached to her statement to on 9 September. Ms Fredericksen answered it was her supervisor, but she couldn't recall whether it was to Jacob Anderson or Tim Span.

• [135] Ms Fredrickson said she filled it out and took a photo of it and then went to the crib hut and handed it to one of the two supervisors but could not remember which one, but she said she definitely handed it in. It was put to Ms Fredericksen that there is a space on the Event Statement Form for it to be signed and her form was not signed. Ms Fredericksen said when she handed it in, she never saw it again.

• [136] Mr Lowrie could not remember who asked him to submit an event statement form but said it was a supervisor either Tailor Blackadder or Tremain Johnston a night or two after the incident. His statement was dated 10 September 2024. The statement said that he did hear Mr Brazier telling the Applicant that he is constantly unstable. He agreed his contemporaneous statement was more reliable than his statement filed for these proceedings.

• [137] Mr Bartley said two or three days after 6 September 2024, he called Ms Ross, his superintendent, of his own volition, because he felt it was what he should do as a witness to the incident. He said he wanted to come forward to document what he saw, and particularly, the poor behaviour of Mr Brazier and Mr Fowler. He said he gave a verbal statement on 6 September 2024, and he never heard about the matter again nor was he asked to make a written statement.

• [138] It was put to Mr Bartley that Ms Ross will give evidence that he never had anything to say about 6 September 2024. Mr Bartley said he never gave a written statement, but he said he did recall having a phone call with her. It was put to Mr Bartley that he may have said something to Ms Ross about Mr Brazier but not link it to the incident on 6 September. Mr Bartley said it was so long ago he could not say one way or the other.

• [139] Mr Bartley agreed that he had two telephone calls with the Respondent's solicitor on Tuesday 5 August, and Wednesday 7 August 2025. Mr Bartley agreed the second telephone call occurred after he emailed the Applicant's solicitors advising that he was happy for them to submit his witness statement on his behalf.

• [140] Mr Bartley's evidence was to the effect that if that statement was provided, he would not be required to give further evidence in these proceedings. Mr Bartley agreed he had said to the Respondents solicitor on Tuesday 5 August 2025 that he wouldn't sign a statement until he had more time to think about it. Mr Bartley denied the Applicant told him if he signed a statement that he would not have to go to court. Mr Bartley said he did not recall saying to the Respondent's solicitor on 7 August 2025 that the Applicant had said to him that if he signed a statement he would not have to appear as a witness at the hearing.

• [141] Mr Bartley's evidence was to the effect that he provided the statement as it would prevent him having to appear. He said he did not recall saying to the Respondent's solicitor that the witness statement was not accurate. He said he made some changes to the statement, and the statement was his words.

• [142] He agreed that he had said to the Respondent's solicitor he was 10 to 15 metres away from the incident, and he said in his oral evidence he was 10 to 15 metres away from the incident, and he agreed this was not included in his witness statement when it was drafted for him.

• [143] Ms Ross agreed that prior to transferring the matter over to Ms Lynch she spoke to a number of witnesses and documented what she was told by them. Ms Lynch said she did not speak to Mr Lowrie as that did not come to her attention until later. Ms Ross said the Applicant had told her that Mr Lowrie had witnessed the incident and that is why Ms Ross got a statement from him. Ms Ross said she spoke to the Applicant's supervisor Ms Blackadder to get a statement off Mr Lowrie, and she got a statement just before Ms Lynch took over.

• [144] Ms Ross said she did not interview Mr Lowrie, Ms Lynch did. Ms Ross said she did provide Mr Lowrie's statement to Ms Lynch. It was put to Ms Ross that Mr Lowrie was never interviewed. Ms Ross's evidence was that she understood he was interviewed by Ms Lynch, and she was unaware that he was not interviewed.

• [145] Ms Ross said she had not seen the statement of Mr Bartley. It was put to Ms Ross that Mr Bartley said within 2 or 3 days of 6 September he called her as he wanted to document the poor behaviour of Mr Brazier and Mr Fowler, and further that he volunteered to Ms Ross his recollection of the 6 September event. Ms Ross rejected that and said Mr Bartley spoke to her about other concerns. Ms Ross' evidence was to the effect he was raising concerns about Mr Brazier and Mr Fowler but not about the specific incident of 6 September. Ms Ross said she did not recall him raising the 6 September incident and that if he had she would have interviewed Mr Bartley.

• [146] Ms Ross confirmed she knew who Ms Fredericksen was. Ms Ross said she was unaware Ms Fredericksen was an eyewitness. Ms Ross said she did not know anything about her event statement being given to Mr Anderson or Mr Span. Ms Ross gave evidence she had not read the statements of Ms Fredericksen, Mr Bartley or Mr Lowrie but she had read the event statement form of Mr Lowrie. Ms Ross accepted that Mr Lowrie's statement should have been provided to Mr Hanson, however she did not accept that it could have changed Mr Hanson's decision.

• [147] On 3 October 2024, Mr Hanson reached out to Ms Lynch to ask if she was okay with taking over the investigation from Ms Ross. Ms Lynch said she told Mr Hanson she was awaiting access to the investigation documents in the HR folders. Her evidence was Mr Hanson did not give her a great deal of detail on the incident because he wanted her to review the existing documents first.

• [148] From 7 September 2024 to 9 October 2024, the Applicant continued to work as normal. On or around 8 October 2024, Ms Ross called the Applicant and told him he would be having a meeting with Ms Karina Lynch, Principal Asset Improvement. The Applicant said he was uncomfortable when he realized the third-party investigator would be a member of the Respondent's management team as he was concerned about the comments about him and his partner getting worse.

• [149] The Applicant's evidence was he felt apprehensive and untrusting about the process because not only was Ms Lynch not a third party, but she began focusing on intimidation and asked the Applicant if he had intimidated other workers on site before.

• [150] On 2 October 2024, Ms Ross copied Ms Lynch in an email to HR requesting they provide her access to the investigation folder, which contained Ms Ross' notes of the conversations she had until the point Ms Lynch commenced her investigation. Ms Lynch agreed she was proceeding on the basis that Ms Ross had provided her with all the material Ms Ross had. Ms Lynch agreed that she was not present for any of the incidents and she was not the final decision maker, however she made the recommendation to dismiss. Ms Lynch agreed she did not have discussions with Mr Hanson about her recommendation.

• [151] It was put to Ms Lynch that Mr Hanson said he did not receive the event statement form of Mr Lowrie. Ms Lynch said she knew she had seen a copy of it, and it was part of the investigation. Ms Lynch agreed it would be a problem if Mr Hanson did not receive it. Ms Lynch said she could not answer yes or no as to whether it was provided to Mr Hanson.

• [152] Ms Lynch agreed that Mr Lowrie was not interviewed because he was on leave. It was put to Ms Lynch the incident occurred on 6 September 2024, and the Applicant was not dismissed until April 2025, and Mr Lowrie was not on leave for all of that time. Ms Lynch maintained he was on leave when she had carriage of the investigation. Ms Lynch agreed her recommendation was made on 25 October 2024. Ms Lynch agreed her involvement ended at that point. Ms Lynch accepted Mr Lowrie could have been interviewed after that point.

• [153] After reviewing the statements, Ms Lynch said she decided to interview the Applicant, Mr Brazier, Ms Fenton, Mr Fowler, Mr Semaine, Mr McLachlan and Mr Connor Bishop. Ms Lynch said she decided to interview these people because they had been mentioned in the materials she had been provided. Her evidence was Mr Lowrie was on leave, and she was unable to interview him, but she had the record of his conversation with Ms Ross, and she took that into account in conducting the investigation and making findings.

• [154] Ms Lynch's evidence was that in the materials provided to her, there was a second Event Statement Form from Mr Brazier that had been filled out regarding an incident between him and the Applicant on 9 April 2024. She said she decided to investigate the April 2024 incident because it involved a pattern of behaviour by the Applicant, although her focus was on the September 2024 incident.

• [155] Ms Lynch said the April 2024 incident was witnessed by Mr Semaine. Ms Lynch said in her interview with Mr Semaine, he described that he could see the Applicant's body language was angry and agitated. Mr Semaine's recollection of the incident was consistent with what Mr Brazier had described, and so Ms Lynch's evidence was she found this behaviour was substantiated.

• [156] It was put to Ms Lynch about the email she sent to Ms Ross copying in Mr Hanson on 25 October 2024 at 8:08am, that all she gave Mr Hanson was her material and not the material gathered by Ms Ross. Ms Lynch said she believed Mr Hanson would have had access to that information as it was all in a shared folder.

• [157] It was put to Ms Lynch that Mr Hanson gave evidence that the only information given to him was the information in that email chain, and he did not have Mr Lowrie's statement, and he had Ms Lynch's notes. Ms Lynch appeared to agree with the proposition that Mr Lowrie's notes were not given to Mr Hanson.

• [158] Ms Lynch agreed that she had offered in her email to Mr Hanson to discuss how she had arrived at her recommendation and agreed that it did not happen on this occasion. Ms Lynch agreed she had read Ms Fredericksen's witness statement and the event statement form attached to her witness statement. Ms Lynch agreed none of that information was information that was part of the investigation. Ms Lynch agreed it was relevant information.

• [159] Ms Lynch agreed Mr Bartley's information was not part of the information in her investigation and she accepted it was relevant information. Ms Lynch accepted there is a potential that had she had the versions of Mr Lowrie, Ms Fredericksen and Mr Bartley it could have changed her recommendation.

• [160] On 9 October 2024, the Applicant was called out of the pit to attend a Microsoft Teams meeting with Ms Lynch. The Applicant said he gave a statement of what happened on 6 September 2024 to Ms Lynch and pleaded with her to ensure that the sexual content would be confidential because he and his partner had already been dealing with rumour mongering during the previous years. Ms Lynch indicated she would only share the information with Mr Hanson, Goonyella Production Manager.

• [161] On or around 11 October 2024, the Applicant got called into the office during his shift and Mr Hanson and Ms Ross told him that he would be stood down pending an investigation.

• [162] The Applicant was referred to the notes from his interview with Ms Lynch on 18 October 2024. The interview notes incorrectly recorded the name of the interviewee as Mr Sermaine.

25 October 2024 Email from Lynch substantiating allegations

• [163] On 25 October 2024, Ms Lynch sent an email to Mr Hanson and Ms Ross attaching the notes from the interviews she had conducted and advising that she had substantiated the allegations.

• [164] Ms Lynch's recommendation was that the Applicant's employment be terminated because he was on a final written warning relating to the same kind of behaviour. She said this was just a recommendation - as far as she was concerned, it was up to Mr Hanson and/or Ms Ross to decide the path to take, and it wasn't until well after the fact that she found out the Applicant's employment had in fact been terminated. She said after she gave her findings to Mr Hanson and Ms Ross, she had no further involvement in the matter.

• [165] Mr Hanson's evidence was after considering Ms Lynch's findings substantiating the allegations, he decided to stand down the Applicant. He said his usual practice is to wait until the findings are substantiated to stand down a respondent to an investigation. This is partly due to his responsibility to look after his employee's mental health. Also, it would not work operationally to stand aside every person who has a complaint made against them.

• [166] Mr Hanson said he decided it was appropriate to proceed to a show cause process because it had been substantiated that the Applicant had engaged in aggressive behaviour that contravened the Respondent's Code of Conduct. His evidence was he was concerned that the behaviour might happen again and that the Applicant might do someone physical harm. Mr Hanson said at this time, he had not reached a decision on whether to terminate the Applicant's employment. He said he had an open mind and wanted to hear the Applicant's response to the show cause process before coming to a final view.

6 November 2024 Investigation Findings and Show Cause

• [167] On 6 November 2024, a meeting was held to discuss the show cause letter issued to the Applicant, indicating that allegations had been confirmed for the 6 September 2024 incident with Mr Brazier, and that he had to show cause why he should not be terminated. At the meeting, Ms Ross read out the stand aside notification. Mr Hanson then read out the show cause notification.

• [168] Mr Hanson said during the meeting, he noticed that the Applicant began to get worked up while he was reading the letter. Mr Hanson said the Applicant's whole nature changed, his nostrils flared, and his chest puffed out. Mr Hanson's evidence was he thought the Applicant might blow his top, so Mr Hanson told him to take a deep breath and calm down, and said words to the effect of "you don't want to do anything you might regret". After he said this, the Applicant took a long breath in and calmed down.

• [169] At the meeting, Mr Hanson said the Applicant brought up the allegations about the behaviour against his partner. Mr Hanson's evidence was he told the Applicant that if he wanted to put forward any allegations about this behaviour, the Respondent needed him to give facts as to what had occurred. Mr Hanson said he told the Applicant he was happy to put the allegations in the system himself, or he or the Applicant's partner could do it themselves.

• [170] At the end of the meeting, Mr Hanson said he gave the Applicant a copy of the show cause and stand aside letters. In November 2024, the Applicant provided his response.

• [171] Mr Hanson's evidence was that he read through the response and although the Applicant tried to take responsibility for some of his actions by apologising, he was still trying to justify them. Mr Hanson said he also admitted to engaging in the behaviour that was described in the allegations.

13 November Applicant's Partner submits Ethics Point Report

• [172] In or around 13 November 2024, about one week before the show cause response was received, the Applicant's partner submitted an Ethics Point report against Mr Brazier and Mr Fowler. Mr Hanson said because the allegations involved sexualised conversation or jokes, it was ranked as a 'Category A' complaint in the Respondent's system. This meant it had to be investigated by an investigator in BHP's Ethics team, rather than by a Superintendent.

• [173] Mr Hanson agreed he was the ultimate decision maker in relation to the Applicant's dismissal.

• [174] Mr Hanson's evidence was his view was that they needed to close out the investigation into the Applicant's partner's allegations before deciding on the Applicant's employment. He said he thought the investigation might bring up other incidents between Mr Brazier and the Applicant which could be relevant to the allegations against the Applicant. He said he also wanted to make sure everyone was treated fairly.

• [175] Mr Hanson said he received the results of the investigation into the Applicant's partner's allegations against Mr Brazier and Mr Fowler on or around 19 February 2025. Having received those results, Mr Hanson said he turned his mind to the Applicant's employment.

• [176] By referring to the active bystander training, Mr Hanson's evidence was he thought the Applicant demonstrated a lack of insight into his behaviour and instead tried to justify it by reference to the treatment of his partner. This was despite the efforts by Ms Ross and Mr Hanson to encourage him and his partner to report these allegations by the appropriate pathway. Mr Hanson said if they had taken that appropriate pathway earlier, the investigation into Mr Brazier would have concluded before the incident between Mr Brazier and the Applicant even occurred.

• [177] Mr Hanson said he also considered that the investigation into Mr Brazier's conduct had substantiated that he had called the Applicant "crazy" and "unstable". Mr Hanson said he did not consider this to mitigate the Applicant's behaviour towards Mr Brazier. Regardless of whether the Applicant was provoked, his aggression was not appropriate in the workplace. Further, he said Goonyella is filled with other contractors and therefore the way the Respondent's employees behave has a reputational impact for the Respondent amongst non-employees.

• [178] Mr Hanson said he decided to terminate the Applicant's employment based on the findings that the Applicant had engaged in aggressive behaviour, and because the findings in relation to Mr Brazier's behaviour did not excuse or absolve the Applicant's misconduct. Mr Hanson agreed that his decision to dismiss the Applicant was based on information provided by Ms Ross and Ms Lynch.

• [179] Mr Hanson agreed that the information provided to him by Ms Lynch was accompanied by a recommendation to terminate the Applicant. Mr Hanson agreed he understood the information he was provided was a complete set of the relevant information. He agreed he would be concerned if it was not a complete set of the relevant information to make his decision.

• [180] Mr Hanson agreed that at the time of dismissal some versions favoured that the Applicant behaved as alleged and some did not. Mr Hanson was asked if Ms Lynch assisted him to reconcile the differences and he said no it was his decision. Mr Hanson accepted that his decision was only as good as the information he was provided. He clarified he also considered the Applicants show cause response.

• [181] Mr Hanson was asked whether he was told by Ms Ross or Ms Lynch that they had information from Mr Lowrie, Ms Fredericksen or Mr Bartley about the incident on 6 September that was inconsistent with the recommendation to dismiss. He answered no. Mr Hanson confirmed he knew who each of those persons were.

• [182] Mr Hanson agreed he was now aware of Ms Fredericksen's version. It was put to Mr Hanson that Ms Fredericksen gave a note about the incident of 6 September to either Mr Span or Mr Anderson. Mr Hanson said he believed the note was given to Mr Anderson because Mr Span was away at that time. Mr Hanson agreed he had now read the note. He did not agree the note would have affected his decision because the Applicant apologised in his show cause response, and why would you apologise for something you haven't done.

• [183] It was put to Mr Hanson that the apology in the show cause response was not an admission that he behaved in an aggressive or intimidating manner during the September incident and was an expression of contrition for having been involved in the confrontation with Mr Brazier, and no more. Mr Hanson did not accept he misconstrued the apology as meaning more than it meant.

• [184] Mr Hanson said he was not aware at the time of the dismissal, of Mr Lowrie's Event Statement Form of 10 September 2024. He said he could not recall reading it. He said he also had not read Mr Lowrie's witness statement. Mr Hanson could not answer as to whether Mr Lowrie's Event Statement was in the information provided by Ms Lynch. Mr Hanson had no recollection of Mr Lowrie's statement before making the decision to dismiss. Mr Hanson was taken through parts of Mr Lowrie's evidence including the incident on 6 September.

• [185] Mr Hanson agreed he was unaware of the statements of Ms Fredericksen and Mr Lowrie.

• [186] Mr Hanson agreed that he understood Mr Bartley's version of the incident was broadly consistent with Ms Fredericksen, Mr Lowrie and the Applicant. Mr Hanson agreed he understood Mr Bartley said he gave his version verbally to Ms Ross shortly after the incident. Mr Hanson agreed he never knew about Mr Bartley's version until the unfair dismissal proceedings. Mr Hanson agreed the versions of Ms Fredericksen, Mr Lowrie and Mr Bartley were relevant and should have been provided to him. Mr Hanson maintained however, it would not have changed his opinion. He said the witness statements he had were consistent with each other.

• [187] Mr Hanson gave oral evidence that the defining part in his decision was the Applicant leaving the bus stop and then turning around and going back. It was put to Mr Hanson that was not a reason in the termination letter, and it was not put to the Applicant. He rejected that. He accepted he never put that specific issue in a dot point. He said it showed the aggressive side, and this is intimidating. He said if the Applicant was not being aggressive why did they need to be separated. He said he also looked at past behaviour.

• [188] Mr Hanson was referred to an email sent to him from Ms Lynch to Ms Ross with a copy to Mr Hanson dated 25 October 2024. Mr Hanson said this was the email with which he was provided the contents of the investigation file. He agreed this email was the only source of information he received in relation to the investigation.

• [189] The termination letter refers to a final written warning given to the Applicant in April 2023. The letter by which the final written warning was issued was provided to Mr Hanson by Ms Shiralee Rudolph. From that document, Mr Hanson said he knew the final written warning was about behavioural issues, including "intimidating and aggressive behaviour". He said he considered the same or similar features to be present in the Applicant's conduct towards Mr Brazier in September 2024. On that basis, Mr Hanson said he believed that this showed a pattern of behaviour, and he did not want a third incident to occur.

• [190] During his oral evidence Mr Hanson agreed he had concluded the Applicant acted in an intimidating and aggressive manner on two occasions on 9 April and 6 September 2024. Mr Hanson accepted that if the Commission formed the view that the Applicant did not act in an intimidating or aggressive way on those two occasions, the reason to dismiss would fall away.

• [191] On 9 April 2025, the Applicant received a copy of the letter of termination after attending a meeting. The Applicant said before his termination, he and his partner were living in Mackay. In December 2024, he and his partner moved to Cooya Beach to be closer to his partner's family. The Applicant said that he felt like he had to leave town because of social impacts of the incident and the termination. He said he would frequently come home, and his partner would be sobbing. The Applicant agreed that they purchased a house while he was subject to a show cause notice. The Applicant said the investigation took six months. This appeared to be because of the time taken to investigate the allegations made by his partner.

• [192] The Applicant said the issues in Moranbah would spill over into Mackay for the Applicant and his partner.

• [193] The Applicant's partner is currently on maternity leave from the Respondent. The Applicant said if he was to go back and work for the Respondent, it would be at a different mine site, and financially he and his partner are better off working for the Respondent, including regarding career advancement.

• [194] The Applicant said the other employment he had obtained had erased 5 years of career progression and he needed to start at the bottom again.

• [195] Section 387 of the Act sets out the considerations when considering if a dismissal was harsh, unjust or unreasonable:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 FWC considers relevant."

• [196] The onus rests with the Respondent to establish on balance that the conduct that it determined justified dismissal occurred and was a valid reason for dismissal.

• [197] The Respondent submitted that it has been raised against it that it failed to call Mr Brazier, Mr Fowler and Mr Fiddler. The Respondent submitted that Mr Brazier and Mr Fowler were both the subject of investigations, both were dismissed, and both have made unfair dismissal applications. One of the reasons Mr Brazier was dismissed was for having said to the Applicant he was mentally unstable. The Respondent said those witnesses are not in the Respondent's camp.

• [198] In relation to Mr Fiddler, the Respondent pointed to the Applicant's show cause response where the Applicant held out that Mr Fiddler would write a statement confirming their ongoing friendship and also submitted the Applicant did not call his partner, and a Jones v Dunkel[12] inference should be drawn against the Applicant for failing to do so.

• [199] The Applicant submitted that his show cause response pertained to that point in time, and there is no evidence Mr Fiddler is in the Applicant's camp now. The Applicant submitted the Respondent never took up the invitation to speak to Mr Fiddler before it terminated his employment. The Applicant submitted that his partner had no probative or relevant evidence to give when she was not present for any of the three events.

• [200] I have determined not to draw a Jones v Dunkel inference against the Applicant for not calling Mr Fiddler or his partner, and have reached the same conclusion in relation to Mr Brazier and Mr Fowler as they are not in the Respondent's camp. I also do not draw a Jones v Dunkel inference against the Respondent in relation to Mr Fiddler.

• [201] The Applicant has objected to any weight being placed on material provided by persons who have not been called to give evidence. The Applicant has submitted that if the Commission is not prepared to do that, then an alternative course would be to admit the documents but not for the truth of the contents of those documents. The Applicant submits if such documents are considered they should only be relied upon to the extent that what they say is not in contest.

• [202] The Respondent referred to decisions of this Commission such as Hijazi v Calvary Health Care ACT Ltd [2021] FWC 13 where it has been found:

"[75] I do not accept the proposition put on behalf of Mr Hijazi that in order for the Commission to make a determination as to whether misconduct occurred, it must only accept evidence through first-hand witnesses of the alleged misconduct. This proposition cannot be supported particularly in light of the cases referred to above.

[76] Additionally, in jurisdictions where the rules of evidence do apply, hearsay evidence is accepted in certain circumstances. Courts will consider a range of factors including whether the evidence is relevant, its probative value, and whether the statement in question was made in circumstances that make it probable that the statement is reliable. To suggest, therefore, that the Grime Investigation should not be admitted simply because it contains first-hand hearsay evidence is wrong

[77] Further, I note that Mr Hijazi's legal representative, Mr Wilson, did not object to the tender of the Grime Investigation during the hearing, having been specifically asked whether he wished to object by Deputy President Kovacic. In this regard, it was submitted that Mr Wilson understood the question posed by the Deputy President to be referring to the bare fact that an investigation was conducted and a report produced, rather than evidence of what various witnesses said or did. This assumption was not clarified by Mr Wilson when answering the question of the Deputy President.

[78] The Grime Investigation is in my view relevant to the Commission's determination of the issues which need to be decided. I am satisfied in this regard that the Grime Investigation constituted a full and extensive investigation, that Mr Hijazi was given a reasonable opportunity to respond, and that the findings were based upon reasonable grounds. It is, however, appropriate to place less weight on the Grime Investigation than might otherwise be the case because it is hearsay, which I have done. This is particularly so given Mr Hijazi was unable to test the evidence by way of cross examining those who complained about his conduct."

• [203] There was an appeal of the decision[13] and the Full Bench made the following observations:

"[17] Ground 1 of the appeal contends that the Deputy President erred in placing reliance on the Grime Investigation. It contends that the Grime Investigation significantly guided the Deputy President's findings about the existence of a valid reason for dismissal. Ground 2 of the appeal contends that the Appellant has been denied procedural fairness because none of the complainants or first-hand witnesses interviewed in the course of the Grime Investigation were called to give evidence. The Appellant contends that he was denied procedural fairness because he did not have the opportunity to challenge the evidence against him and cross-examine the complainants and witnesses.

[18] In essence, grounds 1 and 2 of the appeal take umbrage with the Deputy President's reliance on the Grime Investigation. Accordingly, we will deal with them together.

[19] The Appellant submits that the Deputy President misapplied the principles found in Pearse v Viva Energy Refining Pty Ltd[14] (Pearse) and Department of Social Security v Uink[15](Uink). The Appellant contends that in misapplying these principles, the Deputy President failed to fulfil the Commission's fact-finding functions, instead relying impermissibly on the Grime Investigation to find that a valid reason for dismissal existed.

[20] We do not accept this contention. The Deputy President correctly applied the principles found in Uink to conclude that the Grimes Investigation could be accepted as evidence in the matter before her.[16] Furthermore, due to its nature as hearsay evidence, the Deputy President correctly placed limited weight upon it in her finding of a valid reason for dismissal.[17]

[21] Simply put, the Appellant is attempting to elevate the weight accorded by the Deputy President to the Grimes Investigation so as to make it the deciding factor in her finding that a valid reason for dismissal existed. A fair reading of the Decision does not support this contention. As aforementioned, at paragraph [78] of the Decision, the Deputy Presidentindicated that she placed less weight on the Grime Investigation than she otherwise would have due to its nature as hearsay and because the Appellant was unable to test the evidence by way of cross examining those who complained about his conduct. The Deputy President was clearly alive to issues of procedural fairness in circumstances where the Appellant was unable to cross examine individuals who complained of his conduct and, correctly, gave less weight to the Grime Investigation as a result."

• [204] It is my view the appropriate course to adopt in relation to material from persons who have not been called to give evidence, is to afford it little weight, as it would be prejudicial to the Applicant as there has been no opportunity to challenge their contents. However where such material is repeatedly consistent and corroborates evidence given in the proceedings, it may assist in a small way to conclude a finding on balance.

• [205] It is submitted for the Applicant in relation to the incident on 29 January 2023, that he did not "[engage] in intimidating and aggressive behaviour by threatening another coal mine worker with physical violence (tone and swearing)". The Applicant submitted what was admitted and what was found was that the Applicant used the wrong tone and swore and this is not aggression or intimidation. Secondly, tone and swearing do not justify a final written warning given the norms of the site.

• [206] Mr Fiddler did not appear to give evidence. Mr Semaine who witnessed the incident did give evidence. I am inclined to accept the evidence of the Applicant that he had formed a subjective opinion that employees in the hut had been discussing him and his partner when he entered the crib hut. He accepted during his oral evidence this may have been wrong, however given the evidence overall I have little doubt that was his subjective view, despite no clear objective evidence to support his opinion.

• [207] In relation to the 29 January 2023 incident there were three Event Statement Forms completed by Ms Shay-lee West, Mr William Franklin and Ms Amber Howarth that are consistent with each other. When taken in combination with the evidence of Mr Semaine, and weighed against the Applicant's version, in this particular instance, it tends to favour a conclusion that the Applicant spoke in an unprovoked and aggressive manner to Mr Fiddler inside the crib hut, and that Mr Fiddler did not speak aggressively to the Applicant as was asserted by the Applicant inside the crib hut.

• [208] There was also an anonymous Ethics Point complaint made on 30 January 2023, and a complaint made by Mr Fiddler on 31 January 2023 that corroborated the versions in the other Event Statement Forms in relation to the conduct inside the crib hut. I am inclined to the view that there was a sufficient number of accounts to align with Mr Semaine's version to persuade me that it is the more accurate account in relation to events inside the crib hut.

• [209] The Applicant claimed Mr Fiddler fabricated the version of what happened outside the crib hut in his complaint. The Applicant also denied Mr Fiddler's claims that the Applicant was staring at him on the bus and muttering under his breath. The Applicant accepted in his oral evidence he did have some "choice words" with Mr Fiddler outside, and he didn't handle the situation with Mr Fiddler perfectly, however Mr Fiddler was also his friend.

• [210] It was put to Mr Semaine that the event on 29 January 2023 occurred as explained by the Applicant and not him. He initially said that was correct, however it was my impression he did not understand the question properly, as in answer to the following question he rejected the proposition that the Commission should prefer the Applicant's evidence over his. It was clarified in re-examination that he stood by his version of the event on 29 January 2023.

• [211] I have concluded the events inside the crib hut support the conclusion that the Applicant spoke in an unprovoked and aggressive manner to Mr Fiddler inside the crib hut. I am not satisfied that the conclusion that the Applicant threatened Mr Fiddler with physical violence has been made out. I am satisfied the Applicant was angry, had an aggressive demeanour and used inappropriate language directed at Mr Fiddler.

• [212] Mr Semaine was the only witness to give evidence in relation to the incident on 9 April 2024 besides the Applicant. Mr Brazier provided a Statement in relation to 9 April, but this was only prepared and provided to the Respondent after the 6 September incident. Mr Brazier was not available to give evidence, and I do not intend to afford it any significant weight. Mr Semaine's own evidence is the Applicant and Mr Brazier were about 50 meters away from him and he was too far away to hear exactly what was being said, but claimed he could make out some swear words.

• [213] At one point in his evidence, Mr Semaine appeared to agree that the events on 9 April occurred as explained by the Applicant and not him. He accepted he could not hear what was said and could only see from a distance. He agreed Mr Brazier could have been swearing at the Applicant, but he couldn't know because he couldn't hear. This was quite different to the version he provided in his witness statement where he attributed specific aggressive language to the Applicant, and only to the Applicant.

• [214] Mr Semaine said in his statement Mr Brazier tried to walk away from the conversation a couple of times, but the Applicant kept getting in his way and continuing to talk at him, and the whole interaction went for about six or seven minutes.

• [215] Mr Semaine said he didn't report this incident to anyone, and he agreed his statement did not record Mr Brazier swearing at the Applicant. Mr Semaine conceded under cross examination that the Applicant's version should be preferred over his.

• [216] It is not in dispute that the Applicant foreshadowed to Ms Blackadder and Mr Johnson on 8 April 2024 that he wanted to speak to Mr Brazier about his behaviour, as in his view it had not stopped, and Ms Blackadder and Mr Johnston did not object to the Applicant proceeding with this intention. It is not in dispute that Mr Brazier did not make any complaint about the Applicant's conduct on 9 April until after the 6 September incident.

• [217] I accept the Applicant's evidence that his motivation in wanting to speak to Mr Brazier in private was to address his concerns about what he believed Mr Brazier had been saying about both his partner and him. The text exchange with Mr Brazier on the morning of 9 April is consistent with his explanation. The Applicant would have been aware of his earlier warning and following his discussion with Ms Blackadder and Mr Johnson, the need for him to exercise caution in how he proceeded.

• [218] I prefer the Applicant's evidence over Mr Semaine's in relation to this exchange on 9 April. Mr Semaine was some 50 metres away, unable to hear what was being said, and conceded himself the Applicant was in a better position to give evidence about what occurred.

• [219] I accept the Applicant's evidence that he confronted Mr Brazier about comments made that morning and earlier, and Mr Brazier denied them, and that he did not engage in intimidating or aggressive behaviour toward Mr Brazier during the exchange. After the exchange it is not in dispute that Mr Brazier and the Applicant both got into a vehicle together and drove away.

• [220] In relation to the 6 September incident, the Respondent submitted Mr Lowrie's evidence was that his event statement form was more reliable than his witness statement and despite giving evidence about the Applicant handling conflict well, it became apparent he did not know the Applicant well and had not worked with him to any great extent. The Respondent also submitted Mr Lowrie's estimation of the distance he was from the incident changed. Mr Lowrie agreed that he only heard about 20% of the conversation word for word.

• [221] However, on key issues in relation to the incident on 6 September Mr Lowrie's evidence was broadly consistent with the Applicant's version. His evidence indicated Mr Brazier and not the Applicant was the aggressor. Mr Lowrie's evidence was Mr Brazier got heated and called the Applicant a psycho and that the Applicant was trying to have a conversation with Mr Brazier in private. Mr Lowrie said in his contemporaneous statement that Mr Brazier chose to swear and yell at the Applicant in front of a lot of people.

• [222] The Respondent submitted that Ms Fredericksen made concessions about the reliability of her own memory and made positive comments about the credit of Mr Janetzki. However, Ms Fredericksen's evidence remained broadly consistent with her statement and the Applicant's version. Ms Fredericksen's evidence was the Applicant was simply asking a question and Mr Brazier was talking back but wasn't giving the Applicant any answers and Mr Brazier appeared to be trying to annoy the Applicant more and stir him up.

• [223] The Respondent said Mr Bartley was not paying attention and said he was speaking to someone else, and the Applicant raised his voice first. Mr Bartley's evidence included that Mr Brazier said to the Applicant words to the effect of: "You're not fit for work, you're mentally unstable." Mr Bartley said he felt Mr Brazier was trying to get a rise out of the Applicant. Mr Bartley did not believe the Applicant was aggressive.

• [224] Mr McLachlan said he could not hear the incident on 6 September. The Applicant's evidence was he had decided to speak to Mr Brazier and it was the last day he would see Mr Brazier before going on the opposite crew. On the Applicant's case it was both the laughing and Mr Brazier saying to him "What's your problem Karl" that finally triggered his decision to approach Mr Brazier.

• [225] The Respondent submitted that the Applicant walking back and forward before approaching Mr Brazier was confrontational in and of itself. I am inclined to the view that is more indicative of the fact that the Applicant had not made a final decision as to whether to confront Mr Brazier. There is a conflict in the evidence over whether the Applicant had started walking toward Mr Brazier before or after Mr Brazier had said to him "What's your problem Karl." In my view not much turns on the matter as I am satisfied from the evidence the Applicant's intent in any event at that point was to ask Mr Brazier for a private discussion, and it is not aggressive or intimidating behaviour to do that.

• [226] It seems from the evidence that the Applicant was asking Mr Brazier for a private conversation because he did not want to air the personal issues concerning his partner in front of others, and also because he was trying to follow the active bystander training he had received.

• [227] Mr Janetzki made the concession during his evidence that the Applicant handled the situation on 6 September better than he had in the past and he could see the Applicant was trying to handle the situation. There is inconsistency between the text messages Mr Janetzki sent the Applicant not long after it occurred describing the Applicant has having handled it alright, and his statement in this matter saying the Applicant was aggressive or intimidating. Mr Janetzki agreed that Mr Brazier's voice was raised during the incident and the Applicant appeared upset.

• [228] I am inclined to the view that the value of the evidence of Mr Janetzki in relation to what occurred on 6 September 2024 in both his witness statement and during his oral evidence, was diminished somewhat because both the text messages he sent to the Applicant, and the Event Statement Form he filled out on the day itself, paint a better picture of the Applicant's conduct, than the witness statement he prepared some 10 months later.

• [229] I am inclined to the view that the more contemporaneous documents are a more reliable recollection than his witness statement. Mr Janetzki's Event Statement Form of 6 September 2024 supports the conclusion that Mr Brazier was the provocateur not the Applicant.

• [230] Mr McLachlan's evidence was he could see Mr Brazier was laughing. Mr McLachlan agreed that the Applicant stood a normal conversational distance from Mr Brazier. He also agreed the Applicant appeared upset and they were about half a metre apart. Mr McLachlan agreed it was hard to tell whether the Applicant was upset or angry given he couldn't hear what was said. Mr McLachlan said he could not hear what the Applicant said so he can't say the Applicant did anything wrong. Unlike other witnesses, Mr McLachlan did not make a contemporaneous record at the time of the incident.

• [231] I accept on the evidence that during the exchange the Applicant raised with Mr Brazier that he had been speaking about himself, and his partner and he asked Mr Brazier to come and speak to him privately on several occasions, and Mr Brazier refused several times. Mr Janetzki agreed that Mr Brazier said unpleasant words to the Applicant. The Respondent submitted that the Applicant could have just walked away after Mr Brazier had refused on several occasions to engage in a private conversation.

• [232] The Respondent maintains it is the Applicant that caused the exchange to continue, and it took the intervention of others to deescalate the situation. The Respondent argues that it was the Applicant continuing to ask Mr Brazier for a private conversation that caused the requirement for someone else to intervene. The evidence tends more to support the conclusion however that it was Mr Brazier's unpleasant comments directed toward the Applicant that caused the exchange to escalate, not the Applicant's conduct. The bulk of the witness evidence supports the Applicant's version in relation to this element of the 6 September incident.

• [233] The Respondent's version is supported by Mr McLachlan and Mr Janetzki. I do not intend to afford any significant weight to the other statements of those who did not attend to give evidence in relation to the 6 September incident. Mr McLachlan conceded he could not hear, and there is difficulty with Mr Janetzki in terms of credit because of inconsistencies between contemporaneous records he made, and his texts at the time of the incident as compared to his evidence given 10 months later.

• [234] I am satisfied from the evidence that the Applicant was upset and distressed about what he perceived as sexual harassment of his partner by Mr Brazier and conduct directed at himself by Mr Brazier. He was concerned about his partner's privacy and dignity and was attempting to deal with these concerns privately without bringing those concerns into the open, hence his pressing for a private discussion despite Mr Brazier's resistance.

• [235] The Respondent's case includes that the Applicant had a demonstrated history of losing his temper. I accept that the evidence supports the conclusion that he lost his temper on 29 January 2023. I accept on balance that the evidence in relation to the incident concerning Mr Stenning, and the incident involving Mr McLachlan in August 2024, point to a tendency for the Applicant to be short tempered. The evidence also points however to him being aware of it, and working to address that issue over time, which I am satisfied he was doing.

• [236] There is no doubt the Applicant has a physical presence, being approximately six foot one, and is someone who stays physically fit and has previously been an amateur boxer. Having noted that, there was also evidence that other witnesses were physically bigger or taller than him and were not intimidated by him because of his size. Aspects of the Applicant's physical stature and his history as an amateur boxer should not, of themselves, be allowed to count against him, and perceptions about what he may be capable of does not inform what his actual intentions are.

• [237] The Applicant's approach on 6 September appears to be consistent with the active bystander training he had received both initially, and from when he received further update training. In my view during his oral evidence the Applicant attempted to answer questions honestly and made several appropriate concessions about his earlier conduct. It must be remembered this was occurring in the context discussed above concerning his partner.

• [238] I am not satisfied the incident on 6 September occurred as the Respondent concluded it had, or that the Applicant acted in an aggressive and intimidating manner as concluded by the Respondent on 6 September.

• [239] Mr Hanson agreed that his decision to dismiss the Applicant was based on information provided by Ms Ross and Ms Lynch. It seems reasonably clear from the evidence of Mr Hanson, who was the ultimate decision maker, that he did not see Mr Lowrie's version of the incident of 6 September before he made his decision to dismiss the Applicant. He accepted as much, and Ms Lynch's evidence was that this statement was not in the information she provided Mr Hanson.

• [240] Mr Hanson did not speak to Ms Lynch about how she arrived at the recommendation she made. He also did not have the statement of Ms Fredericksen or information about Mr Bartley's version which he said he did not know about until these proceedings. The combination of Ms Lynch's evidence and Mr Hanson's evidence tends to support a conclusion that it is likely Mr Hanson read the information in Ms Lynch's investigation report and her recommendation, but not other materials collected by Ms Ross that were on the share drive. There is no evidence Mr Hanson accessed other documents on the share drive.

• [241] Mr Hanson appeared to put considerable weight on an apology included in the Applicant's show cause response as a concession he had acted in an aggressive and intimidating manner on 6 September. There was no proper basis for that conclusion, and it was never put to the Applicant. It is my view Mr Hanson misconstrued the apology in the Applicant's show cause response. It was not, as he understood it, to be an admission that he acted in an intimidating and aggressive manner on 6 September, and was no more than an apology for being involved in the events themselves.

• [242] Mr Hanson also described the defining part in his decision, being the Applicant leaving the bus stop and then turning around and going back, which was not a reason in the termination letter.

• [243] Ms Ross agreed she did not speak to Mr Lowrie and believed Ms Lynch had interviewed him and only became aware he was never interviewed in the witness box. Ms Ross said she was unaware Ms Fredericksen was an eyewitness and had not read the statements of Ms Fredericksen, Mr Bartley or Mr Lowrie but she had read the event statement form of Mr Lowrie. Ms Ross accepted that Mr Lowrie's statement should have been provided to Mr Hanson.

• [244] I have weighed the Respondent's submission that the Applicant's evidence was consistent with someone who is somewhat paranoid and assuming that people are set against him - referring to the Applicant accepting he had no reason for believing the people sitting in the crib hut on 29 January 2023 were talking about him, and his view that Mr Brazier was laughing at him during the 6 September 2024 incident.

• [245] I have also weighed the Respondent's submission that the Applicant did not provide a satisfactory explanation for why he did not escalate the issue by making a formal complaint and detailing the allegations.

• [246] Having weighed those factors, I have concluded the weight of the evidence supports the conclusions that on balance the conduct engaged in by the Applicant on 29 January 2023 justified a warning, however the Respondent has not established that the Applicant's conduct on either 9 April 2024, or 6 September 2024 was intimidating and aggressive behaviour. I am not satisfied the Respondent had a valid reason for dismissal.

• [247] Both parties agreed the Applicant had been notified of the reason for dismissal. I consider this a neutral consideration.

• [248] The Respondent submitted the Applicant had the opportunity to respond to the allegations and did so. The Applicant submitted the Respondent failed to properly and genuinely consider the Applicant's responses. The Applicant submitted that if the Respondent had properly considered his responses to the allegations, it would (or alternatively could) have reached a different conclusion.

• [249] The Respondent accepted in closing submissions that Mr Lowrie, Ms Fredericksen and Mr Bartley observed the incident and none of those three people had their accounts before Mr Hanson. The Respondent submitted because of the quality of these accounts they would not have changed the outcome even had they been before Mr Hanson. Further the Respondent submitted Mr Lowrie's evidence was before Ms Lynch.

• [250] The Respondent submitted there is a contest about whether Ms Fredericksen's statement was ever provided because it has not been found. I am inclined to prefer Ms Fredericksen's evidence that she did provide her statement to her supervisor which was probably Mr Anderson. It seems this account never got to Ms Ross, Ms Lynch or Mr Hanson.

• [251] It is apparent from the statement the Applicant provided to Ms Ross on 9 September that he recorded Ms Fredericksen as being present at the bus stop when the incident occurred on 6 September, and yet it seems Ms Fredericksen was not approached by Ms Ross or Ms Lynch for a statement. It seems Mr Anderson did ask Ms Fredericksen for a statement, however it would have been expected that either Ms Ross or Ms Lynch would have enquired into where it was, which did not happen.

• [252] The Respondent submitted that Mr Bartley conceded he could not remember one way or another whether he called Ms Ross. Ms Ross however confirmed she did have a conversation with Mr Bartley. I am also inclined to accept that Mr Bartley had a conversation with Ms Ross shortly after the incident on 6 September, and this conversation did include reference to his view about Mr Brazier's conduct on 6 September as he claimed he had. In forming that view, I do not suggest Ms Ross was not an honest witness.

• [253] Ms Ross said that she did not recall Mr Bartley speaking specifically about that incident. It seems more plausible that whilst he did raise other concerns about Mr Brazier and Mr Fowler during the conversation as Ms Ross accepted, he would have also expressed his view about the incident that had only just occurred, an incident that was clearly a matter of controversy in the workplace involving Mr Brazier. The alternative as posed by Ms Ross is that he raised other matters about Mr Brazier and Mr Fowler with Ms Ross, but not the very recent controversial incident he had just witnessed. That seems less plausible.

• [254] It was a procedural failure on the Respondent's part that Mr Lowrie's statement was never before Mr Hanson. It was a procedural failure on the Respondent's part that Ms Fredericksen's statement was never before Ms Ross, Ms Lynch or Mr Hanson. It was a procedural failure on the Respondent's part that Mr Bartley was never asked for a statement after he spoke to Ms Ross about his version of the 6 September incident. These failures denied the Applicant the opportunity for those versions to be considered.

• [255] The Applicant was not unreasonably refused a support person.

• [256] I have set out above the reasons I am satisfied the Respondent was justified in issuing a warning to the Applicant on 29 January 2023, although I am not satisfied the Applicant's conduct was as serious as the Respondent had concluded in relation to this incident.

Size of enterprise and availability of human resource specialists

• [257] Procedural deficiencies have come to light during the evidence. The Respondent is a large organisation and an organisation of the Respondent's size, and internal human resource expertise should have been sufficient to prevent these deficiencies from occurring. Unfortunately for the Applicant, they did not.

• [258] The Respondent submitted the Applicant always had the ability to make a complaint about Mr Brazier's behaviour towards his partner. He knew this and he received in-person annual training on BHP's Code of Conduct.

• [259] The Respondent contended that had the Applicant acted appropriately, by reporting these allegations using any of the processes made available by the Respondent for that purpose, the Respondent would have investigated and been on notice of Mr Brazier's behaviour towards the Applicant's partner and could have done something to stop that behaviour. The Respondent said it follows that what occurred in April 2024 and September 2024 involved missteps of the Applicant's own making.

• [260] It was apparent to me from his evidence that the Applicant was very reluctant to be specific about the nature of the allegations concerning his partner, because he wanted to prevent the highly personal nature of the allegations being the subject of more gossip throughout the workplace.

• [261] Consistent with past decisions, the Applicant submitted that significant weight should be attached to the Applicant's length of service and work record with the Respondent. It is submitted that the Applicant's period of service is a factor that weighs in favour of the termination being considered harsh.

• [262] Having weighed all the evidence, I have concluded the Respondent did not have a valid reason for dismissal, and there were also procedural flaws in the investigation process as set out above.

• [263] I have considered each of the matters I am required to consider in s.387 of the Act and have concluded the dismissal was harsh, unjust and unreasonable.

• [264] The matter will be listed for directions shortly to deal with remedy.

[12] [1959] HCA 8 - [1959] HCA 8; 101 CLR 298; 32 ALJR 395.

[13] Hijazi v Calvary Health Care ACT Ltd [2021] FWCFB 1920.

[14] [2017] FWCFB 4701.

[15] (1997) 77 IR 244.

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