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[2013] FWC 3503
General information, not legal advice.
Fair Work Commission
2013-06-28
Deputy President Richards, President Richards, Senior DP Richards
Original judgment source is linked above.
Note: An appeal pursuant to s.604 (C2013/5193) was lodged against this decision - refer to Full Bench decision dated 21 October 2013 [[2013] FWCFB 8210] for result of appeal.
s.394 - Application for unfair dismissal remedy
Summary: allegation of object thrown at vehicle on a CFMEU protest line - non-unionists in transit to BMA mine site - civil burden of proof - prior court proceedings - whether conduct made out - Applicant's evidence and witness evidence considered - inconsistencies in evidence - factors affecting observations - onus on employer to prove misconduct.
[1] On 18 April 2012 Mr Glen Mackie ("the Applicant") lodged an application under section 394 of the Fair Work Act 2009 ("the Act") seeking an unfair dismissal remedy in respect of his dismissal by BHP Coal Pty Limited on 4 April 2012.
[2] There has been a considerable delay in progressing this application for reason that the matters that were in contest in relation to the dismissal - which concerned whether the Applicant threw a projectile at a moving vehicle (containing two non-union employees, Mr Stephen Vine and Mr Ty Christison) whilst it passed through a picket line or protest at a BMA mine site near Blackwater on 29 March 2012. One reason for the delay was that the matter was the subject of proceedings in the Magistrates Court on 26 July 2012. Following that summary trial before a magistrate, the Applicant was convicted of the offence of committing a public nuisance under the Summary Offences Act 2005.
[3] That finding was appealed, subsequently, to the District Court of Queensland whereupon the decision of the Magistrate was overturned by a single judge of that court.
[4] There is little to be gained for my purposes under the Act in trawling through those decisions for purposes of guidance; I am required to hear the matter afresh on the evidence before me and within a particular statutory setting. Evidence given in prior proceedings and statements will remain salient, of course.
[5] The proceedings in the courts, in any event, were of a criminal nature, and the applicable burden of proof was whether the Court could be satisfied beyond reasonable doubt that the Applicant was guilty of the offence as alleged. Issues arising from the approach to the criminal burden of proof were central to the appeal referred to above.
[6] The civil burden of proof applies in the circumstances with which I will proceed to contend.
[7] The background relevant to these matters, from the Applicant's perspective, is as follows.
[8] On 29 March 2012 the Applicant, along with others (somewhere between 30-70 CFMEU members it appears), participated in a picket line at what I would describe as the main road transport access point to a BMA mine site near Blackwater, in Queensland.
[9] As mentioned above, the Applicant's employment was terminated on 4 April 2012 as a result of an allegation that he threw a projectile at a moving vehicle on 29 March 2012, as the vehicle drove past a protest being conducted by the Construction, Forestry, Mining and Energy Union ("the CFMEU") (of which the Applicant was a member) during a period of protected industrial action.
[10] The Applicant had no prior disciplinary history (at least that was led in these proceedings) which is relevant to my determination.
[11] The Applicant claims that prior to the commencement of the protest (for which a police permit had been obtained) the Applicant stated that he was advised by CFMEU officials that the protest should be orderly and he otherwise understood that workers had been getting into trouble for their conduct in relation to protests at coal mines in Queensland.
[12] The Applicant claimed that at approximately 5:05 AM on 29 March 2012 he arrived at the protest site and noticed that there were some 40 to 50 CFMEU members (on his account) already standing on both sides of the road. It was dark at the time.
[13] The Applicant claims that upon arriving at the protest and obtaining a cup of coffee he took a seat next to Mr O'Toole - a co-worker - who was sitting at the end of the protest line at its southern end. The Applicant claims that he placed a cardboard placard against his knees as he sat next to Mr O'Toole. The issue of the coffee cup and the placard come into contention in the following (as does the issue of the Applicant's headwear at the time, which was to become important in the matter of his identification).
[14] The Applicant claims to have been sitting some 50 to 60m away from the lighting plant, and to have been some 4 - 6metres away from the cars travelling past towards the mine, which was to the south. The Applicant stated that he could not see to the north because of other members who were standing to his right (which was a point of some contrast with Mr O'Toole's evidence below).
[15] At a point after he had sat down with Mr O'Toole, he heard someone yell words to the effect of:
[16] The Applicant claims to have seen an old Toyota Land Cruiser move slowly past the protest. As the vehicle passed the protest, people shouted and made a lot of noise and waved their placards, according to the Applicant. He did not recognise the vehicle as being unique in any way, or as being Mr Vine's vehicle. Nor did he recognise anyone in the vehicle, he says.
[17] Having said he did not recognise the vehicle or its occupants, the Applicant simply assumed that the car "contained a non-union employee because of the comments from those amongst the protest as the car approached."
[18] The Applicant claims that he remained seated as the car went past as he had a cup of coffee in one hand and a placard leaning against his legs. He didn't yell out anything at the car because he says he did not know who was in it. That is, though the Applicant knew the vehicle that was passing through the picket line contained non-union employees - who had been the subject of the union's anxieties - he did not protest against them.
[19] Mr Brett Kendrick, who was also on the picket line somewhere behind the Applicant, recalled seeing the Applicant (from the Applicant's back) sitting on a chair as the car went past. He gave evidence that the Applicant moved slightly out of his chair and then sat back down again, adjusting his placards as he did so. Mr Kendrick states that he did not see the Applicant move his arms or make any other movement directed towards the car. There is a more extensive discussion of Mr Kendrick's evidence below.
[20] Mr O'Toole, who was sitting next to the Applicant, stated that the Applicant remained seated when the vehicles went past and other than looking at the vehicles he did not make any physical gestures towards the vehicles including yelling anything out as they passed. Mr O'Toole claims that he did not see the Applicant throw anything at the vehicles as they passed.
[21] The Applicant claims that he did not see anyone throw anything at the car, nor does he claim to have seen the car swerve on the road as it passed through the protest. Nor did any of the other witnesses for the Applicant, such as Mr Tim Dwyer who was on the picket line near to the Applicant.
[22] After the vehicle had passed the Applicant was informed that Mr Ty Christison and Mr Steve Vine had been in the car. The Applicant understood that both these individuals "had not been engaging in strike action with the rest of us."
[23] A few hours later, at around 7:30 AM, as the Applicant was readying himself to leave the protest he overheard a discussion about writing on the road leading out to the mine which had made derogatory comments about Mr Christison and Mr Vine.
[24] The Applicant inspected the comments written on the road and recalled that they referred to Mr Christison and Mr Vine and made reference to "scabs".
[25] The writing on the road, as became evident over the proceedings, referred to Mr Christison and Mr Vine, and it stated:
[26] Later that day, the Applicant received a telephone call from a police officer who wished to speak with him. Still later, two police officers attended his house and referred to an incident that morning on the picket line. One of the police officers indicated that an unidentified object had been thrown at a car and that there were two complainants.
[27] The Applicant was then given a "Notice to Appear" and "Identifying Particulars Notice".
[28] The Applicant subsequently attended the Blackwater police station whereupon he was fingerprinted and photographed by police and asked a number of questions about the incident. The Applicant states that he declined to comment based on legal advice he had received.
[29] On 4 April 2012 at around 6:30 AM, after the Applicant had arrived at work to perform his ordinary duties, he was directed to attend a meeting with the manager of production mining, Mr Almeroe De Nysschen. The Applicant duly attended the meeting, along with a CFMEU delegate. Mr Reg O'Connell from the Human Resources department was also present at the time.
[30] Mr De Nysschen alleged that something was thrown at a vehicle on the morning of 29 March 2012 and that he had two witness statements saying that it was the Applicant who had thrown the projectile.
[31] The Applicant made no comment for reason that he indicated that he was under legal advice not to talk about the issue because it was now a criminal matter. The Applicant's claims in this regard are supported by the delegate who attended the meeting, Mr Damian Borg.
[32] Mr O'Connell took the view that the matter was a work-related issue and that the criminal proceedings were quite separate. The meeting seems to have persisted for some 4 hours with periodic suspensions so that the Applicant and the delegate could obtain advice from the CFMEU. Mr O'Connell stated that there were some five distinguishable meetings over the course of that morning (though I was spared a debate as to what constituted a meeting).
[33] The Applicant claims that at around 12 PM, he was handed a termination letter. The termination letter read in part:
Further to our recent discussions today 4th April 2012, I wish to confirm the following:
Your employment with BHP Coal Pty Ltd is to be terminated for serious misconduct effective today 4th of April 2012. Although the company is not required to do so, the company has elected to provide you with four weeks pay.
The reason for the termination of your employment is your behaviour in throwing projectiles at a vehicle containing other employees who were passing through the area of the protest line in support of EA negotiations on Thursday 29th of March 2012.
[34] On each of the occasions the parties met the Respondent sought to investigate the statements made by Mr Vine and Mr Christison in relation to the Applicant's responsibility for throwing a projectile at a vehicle, the Applicant refused to respond (as explained above) other than to express his denial of the claims.
[35] The Applicant was warned in the course of the meetings that his employment was in jeopardy if his behaviour was found to have occurred as alleged.
[36] The Applicant considers that the dismissal had a significant impact upon him, particularly in so far as he was disenfranchised from the share matching initiative of the Respondent in which he had participated for some years. The Applicant claims to have lost almost $17,000 in shares as a consequence of the dismissal.
[37] The Applicant's gross wages amounted to $2524 per week at the time of his dismissal, and he had also been entitled to a $6000 tax-free per annum payment in accordance with his employer's housing scheme entitlement (which he claimed to be of the value of $168.44 per week).
[38] The Applicant commenced work as a shot firer with Downer EDI on what appears (notwithstanding the Applicant's statement) to be 30 April 2012. In that position he has earned $2155.38 per week gross. He is also paid $426.42 gross in the form of a living away from home allowance.
[39] The Applicant claims to have lost $368.62 per week gross in wages and $110.64 week in allowances as a result of his termination.
[40] He also claims that between April 2012 and November 2012 he had to travel further to work each day. This amounted to 60 km extra 14 times each month.
[41] The Respondent's factual perspective on these matters is as follows.
[42] Mr Vine was the driver of the vehicle at which it was claimed an object was thrown. He had known the Applicant for some time, having first met him in April 2006 (when both were employed by another employer). In that earlier period of employment the Applicant delivered explosives to the shotfirers (including to Mr Vine) on a particular shot. At that time Mr Mackie and Mr Vine worked the same shift roster and they saw and spoke to one another a number of times each day, as well as at company recreational functions. Both were subsequently employed with the Respondent from about September 2006, and Mr Vine would see the Applicant intermittently from that time.
[43] On 29 March 2012, Mr Vine says he and Mr Christison drove through the protest area. The protest area was some 20-30 metres long and barricaded from the road. About 70 protesters were assembled, according to Mr Vine, behind the barricades.
[44] As he approached the protest Mr Vine, who was driving the vehicle, had slowed down out of concern for the proximity of the protesters to the road. The protestors were on both sides of the road, with more on the left hand side than the right hand side.
[45] Mr Vine said the lighting was good and that he could see the protestors' faces.
[46] His vehicle had a sticker on the doors that stated "Steve Vine Lakeview Antenna Services".
[47] As the vehicle passed through the protest Mr Vine states that:
I glanced to the left hand side and I saw Mr Mackie. My view of Mr Mackie was unobstructed. To the best of my recollection he had some kind of headwear on, but I cannot recall what it was. I had no difficulty recognising him.
[48] The Applicant, according to Mr Vine, was in the act of throwing a projectile:
When I saw Mr Mackie, he was standing up and his right arm was raised in a throwing action.
[49] Mr Vine claimed that he saw the projectile leave the Applicant's hand:
I then saw an object leave Mr Mackie's hand. I have a very vivid recollection of seeing this.
[50] Mr Vine claims that the object travelled towards his vehicle and he lost sight of it as it went over the hood:
I then heard the sound of something hit the canopy of the back of my ute and then heard something hit the road on the driver's side of the vehicle.
[51] This caused Mr Vine to take evasive action:
I instinctively swerved to avoid the object. I then corrected myself and continued to drive on towards the Mine.
[52] Mr Vine characterised the extent of the swerve as "just a small twitch out of instinct."
At the time I saw Mr Mackie throw the object at my vehicle, he was standing approximately 10 m away from my vehicle. There were other people standing around him at the time, though not very close to him.
[54] As he was the driver, Mr Vine only witnessed the actions of the Applicant for a few seconds, or at least a very short period of time.
[55] There are some other features of Mr Vine's viva voce evidence in these respects to which I will refer further below.
[56] Mr Vine's vehicle progressed towards the mine following the incident. Possibly one kilometre further down the road from the protest area Mr Vine noted large orange writing or graffiti on the road referring to Mr Christison and himself. I have set it out the content of the graffti earlier. Photographs of the graffiti were tendered in evidence.
[57] Mr Vine along with Mr Christison approached a supervisor at the pre-start meeting and alerted him to the incident. Mr Vine and Mr Christison thereafter provided a written statement about the incident to the Respondent.
[58] Later that morning Mr Vine attended a meeting at the office of the general manager for the mine who is also the site senior executive and was introduced to a lawyer and a police officer from the Blackwater police station. Mr Vine provided a written statement at that time regarding the incident. On 3 May 2012 he attended the Blackwater police station and gave a further statement. The statements form part of Mr Vine's evidence.
[59] Mr Christison states that he had known the Applicant for approximately 4 1/2 years, and had "had fairly consistent work interactions" with the Applicant during that period, including sharing social activities.
[60] Mr Christison stated that he had probably seen the Applicant hundreds of times in close proximity and had spoken to him on many occasions over the 4 1/2 years he had known him.
[61] Mr Christison had been a member of the CFMEU since 2009 but had resigned his membership in February 2012. In early March 2012 Mr Christison claimed that his front lawn had been subject to an application of herbicide which formed the word "scab". He referred to other conduct consequence of his resignation from the CFMEU, including being transferred from his regular crew. Mr Christison did not participate in the industrial action that occurred at the mine in March 2012.
[62] Mr Christison stated that the protesters generally would stand on both sides of the road as Mr Vine and he (as a passenger) drove through to the mine.
[63] The area of the protest was well lit by a lighting tower:
[64] Mr Christison stated that he was able to recognise people in the protest on the occasions he drove through to the mine. On one occasion - which appeared to be 17 February 2012 - a 'witches hat' had been thrown at the car in which he was travelling, though he was not able to identify the responsible person.
[65] On 29 March 2012, at about 5:15 AM he sat as a passenger with Mr Vine as Mr Vine drove through the protest.
[66] On this occasion the lighting tower had been set up on the left-hand side of the road and the area was according to Mr Christison "extremely well lit and it was very bright."
[67] Mr Christison admitted to being apprehensive and nervous and was alert and scanning the faces of the people in the protest.
[68] Mr Christison stated that he witnessed Mr Dwyer - who is referred to above - standing just beyond a light tower on the left-hand side of the road, yelling and screaming at the car as they drove by.
[69] He observed that Mr Dwyer was wearing a white cowboy hat.
[70] As the car progressed through the protest Mr Christison stated that he saw the Applicant.
[71] The Applicant was not standing near Mr Dwyer, according to Mr Christison.
[72] The Applicant was located towards the end of the protest line and was standing further beyond the light tower than Mr Dwyer and was according to Mr Christison some 5 metres away from the car. Mr Christison stated that the Applicant was standing some metres away from the nearest people.
[73] Mr Christison claims that the Applicant was also wearing a cowboy hat, which he had seen him wear on other occasions.
[74] Mr Christison states that the Applicant was standing near two CFMEU flags.
[75] He then saw the Applicant take a step forward and lift his right arm and throw an object at the vehicle in which he was a passenger. He heard the "bang" as the object hit the ute canopy and he felt the car swerve "a bit". Mr Christison further states:
After Mr Mackie threw the object, I pointed my finger at him. I then saw him look directly back at me and then put his hand over his face.
[76] Both Mr Vine and Mr Christison gave evidence that the evasive action taken by Mr Vine was limited, or of a minor nature, in response to the object being thrown.
[77] As the vehicle progressed up the road towards the mine, approximately one kilometre beyond the protest Mr Christison witnessed various words written in large writing in fluorescent orange paint on the roadway. The words are set out earlier in this decision.
[78] Mr Christison gave evidence that upon arriving to work he had agreed to report the incident to his employer and did so in the company of Mr Vine.
[79] As with Mr Vine, Mr Christison provided a written statement about the incident at the time. He provided a further written statement when he was called to the general manager's office later that morning. A more detailed written statement was provided to the police on 25 April 2012.
[80] Mr Christison claimed that the evidence of Mr Hannaford, as set out below, was false and untrue in all respects and that he had never said the words Mr Hannaford claimed he had said, and was offended by Mr Hannaford's claims to the contrary.
[81] I will return to Mr Vine's and Mr Christison's evidence below. There are wider issues and circumstances within which their evidence needs to be considered.
[82] The incident occurred at around daybreak on 29 March 2012.
[83] Mr O'Toole, as a witness for the Applicant, gave evidence that though it was still dark at the time, there was a lighting plant or tower on the western side of the road (a fact also attested by Mr Dwyer) so he (Mr O'Toole) could see what he was doing. Mr O'Toole was sitting next to the Applicant.
[84] Both Mr Christison and Mr Vine gave evidence that the tower lighting was sufficient to enable ready identification of persons involved in the roadside protest.
[85] Mr Dwyer, as a witness for the Applicant, for his part could make out the faces of both Mr Vine and Mr Christison in the vehicle, such was the availability of light. Mr Kendrick, as a witness for the Applicant, stated that it was "really bright".
[86] The Applicant claims that he was some 50 to 60 metres from the light tower.
[87] It appears to me that the lighting available across the protest, and in respect of the Applicant's location, was sufficient to provide for the identification of a person within a reasonable distance (see below).
[88] Mr Vine gave evidence that the Applicant was some 10 metres from the roadside (in his statement to police), though his earlier statements put that distance somewhere around 5 to 6 metres. Mr Christison put the distance at around 5 metres.
[89] The Applicant locates himself some 5 metres or so from the roadside. Mr Dwyer placed the Applicant on the grass but close the gutter, perhaps a matter of a few metres from the passing vehicles.
[90] On the evidence available to me, the Applicant was in sufficient proximity to the road to be readily recognised by Mr Vine and Mr Christison as they drove by.
[91] Both Mr Vine and Mr Christison gave evidence that they had a close familiarity with the Applicant's appearance by dint of their work and prior social and recreational interactions with the Applicant. The Applicant agreed that he was familiar to both Mr Vine and Mr Christison.
[92] The Applicant was far from being a stranger to either Mr Christison or Mr Vine. They both gave evidence that they readily identified the Applicant at the end of the protest line. Mr Christison appears to have been better positioned to make the identification as he was the passenger and was studying the faces as he went through the protest line. As I have said earlier, Mr Vine was distracted by his responsibilities as the driver and claims that the Applicant was "unlucky" to have been identified by him in the brief opportunity he had to survey the protest line.
[93] The evidence leads me to conclude that Mr Vine and Mr Christison were capable of readily recognising the Applicant, even if their focus on him was for a short period of time only.
[94] Mr Christison gave evidence that the vehicle in which he was a passenger slowed down as they approached and passed through the protest lines. Mr Vine also gave evidence that he slowed down as he approached the protesters out of concern about how close they were to the road. In his statement to police Mr Christison had stated that he believed the vehicle was travelling at between 20 to 30 kph at the time, though in his evidence in these proceedings he claimed to be travelling somewhere between 30 and 40 kph (however under cross examination his evidence lacked exactitude in this regard). Mr Christison appeared in the end to be uncertain about the speed of Mr Vine's vehicle as it moved through the protest line, though his evidence suggests he had the impression the vehicle speed may have been around 30 kph.
[95] The Applicant for his part gave evidence that the vehicle moved "slowly through the protest."
[96] The evidence as led satisfies me that the speed of the vehicle driven by Mr Vine was such that it would make the task of recognition of an individual's identity reasonably available.
[97] At the outset I note that evidence was led in these proceedings by Mr Hannaford - as a witness for the Applicant - that Mr Christison had spoken certain words to him, and that these words brought into question Mr Christison's motivation in making his claims. I will deal with these matters below, and quite separately from the following discussion.
[98] That said, the evidence of Mr Vine and Mr Christison provided for significant overlap but not slavish replication (which sometimes can be an indicator of concoction).
[99] The differences in their evidence are not material noting that the differences in observations may reasonably result from:
[100] Some of the differences in the observed evidence were as follows:
[101] None of these differences are such that they suggest to me that the evidence as I have reviewed it so far was concocted in relation to the central issue of identification or else flawed in any fundamental way for the purposes of the determination I must make. The differences in the evidence are not sufficient to give rise to an inherent contradiction or inconsistency that is fatal to the central claim. It strikes me as being reasonable that Mr Vine only absorbed the Applicant's unobstructed image momentarily, having "glanced to the left." He was the driver and several stressors were acting on his attention. This had in effect been Mr Vine's claim in his statement to police. Mr Vine's evidence would be questionable if he had a more elaborate observation than he claimed. Mr Christison's situation allowed for a more comprehensive observation by far; he was the passenger in the vehicle only.
[102] But that said, there are a number of further apparent internal inconsistencies within the evidence of both Mr Vine and Mr Christison that warrant exploration.
[103] Mr Vine's evidence in writing in these proceedings was that he observed the Applicant in an unobstructed manner to his left as he passed him, and in a glance witnessed him in the action of throwing an object.
[104] In his viva voce evidence, however, he recounted a more comprehensive recollection of the scene, which included the Applicant having been obscured or standing behind a sign but becoming visible as Mr Vine approached him. Just how the Applicant came to be visible is a point of contention. He may have become visible as the vehicle approached and the angle of vision opened up. Or else, on Mr Vine's initial two statements (Exhibits SEV-4 and SEV-5) he may have stepped forward from behind the sign.
[105] In these proceedings, Mr Vine's evidence seemed to share something of all of the above - the Applicant was obscured behind a sign and Mr Vine saw him taking a step forward as he commenced the throwing action.
[106] Having heard Mr Vine's evidence, I have concluded that Mr Vine himself has a perception issue as to how the Applicant came into his line of vision - either by stepping forward from behind a sign or as a result of the changing angle of vision as Mr Vine's vehicle progressed through the picket line (whereupon he witnessed the Applicant take a step in the action of throwing the object).
[107] I do not think it is a matter that goes to the witness' credibility. The difficulties in Mr Vine's explanation of the structure of the observed action arise reasonably from the brevity of the period of time the witness observed the Applicant.
[108] In all, Mr Vine's evidence was not inherently contradictory or implausible to the extent I question its reliability.
[109] Mr Christison's evidence is not without difficulties at points, either.
[110] In his initial statement Mr Christison had stated that he saw Mr Mackie "step out from behind a sign and launch a projectile in the direction of the vehicle" in which he was travelling. In the second statement (to police) Mr Christison had noted that Mr Mackie had stepped out from behind a freestanding sign that was about "six-foot tall." In the Magistrates Court proceedings Mr Christison referred to the sign as "free standing flags", which were "like a flag." Later in the Court proceedings Mr Christison referred to the Applicant as having "[h]id behind the actual sign that was there [...] [m]oved in behind the flag." In these proceedings Mr Christison referred to the Applicant being behind flags.
[111] I very much doubt anything material turns on the distinction between flags and signs as Mr Christison referred to them over the long course of the evidentiary trail.
[112] It is not disputed that there were signs on poles and flags in the area. Mr Dwyer for the Applicant gave evidence to this effect (though in cross examination, with some uncertainty, he thought the placards affixed to the poles were on the marquees only).
[113] In the Magistrates Court proceedings and in these proceedings, Mr Christison gave evidence that the Applicant hid his face in his hands when he realised he had been observed. But these observations were in none of Mr Christison's initial statements.
[114] In his first statement to the police, Mr Christison stated he was travelling with Mr Vine at a speed of 20 to 30 kph as they advanced through the picket line. Elsewhere (in the Magistrate Court proceedings) I note that Mr Christison placed the speed at 30-40 kph. I have made some comments on this matter of evidence above.
[115] In his initial statements, Mr Christison made no mention of Mr Dwyer or his hat, and the proceedings in the Court did not touch on such an observation. But the sighting of Mr Dwyer was introduced into the evidence in these proceedings (noting that in his re-examination in the Magistrates Court, Mr Dwyer had mentioned he had been wearing a hat, as he did in his evidence in these proceedings).
[116] In the Magistrates Court proceedings Mr Christison claimed he heard no noise as the object struck the canopy of the ute, but recalled Mr Vine causing the vehicle to swerve somewhat when the object was thrown. In these proceedings, however, Mr Christison claimed, like Mr Vine, to have heard the effect of the impact, as the vehicle's windows were down, in addition to recalling the swerving motion he effected.
[117] Reviewing the evidence, these are not discrepancies that give rise to inconsistencies of such a scale or type that are fatal to Mr Christison's credibility, and the reliability of his evidence as I have heard it, that he witnessed the Applicant throw an object at the vehicle in which he was a passenger. That is, while there are difficulties in the evidence before me, these difficulties do not attack in any substantive manner on the claim about identification which is central to these proceedings (or else aid a finding of concoction in that respect).
[118] I note too that Mr Vine and Mr Christison made their complaint about the Applicant soon after their pre-start and immediately following the incident, and not after some delayed period that might more readily allow for collaboration and fabrication in some circumstances. Two statements from each of Mr Vine and Mr Christison were taken the same morning.
[119] Having examined the evidence for the Respondent, I will turn to examine the evidence for the Applicant. That evidence does not need to prove that the Applicant was not guilty of the conduct as alleged: the Respondent bears the burden principally to prove the misconduct in this case. But the evidence led on behalf of the Applicant may be relevant. For example, that evidence may bring into question the claims of the Respondent. In some circumstances, the wider evidence can also assist the Respondent's case. For these reasons the Applicant's evidentiary case requires close scrutiny in its own right.
[120] The Applicant's evidence was that he attended the protest but in effect made no protest other than through his passive physical presence. That is, while those about him sang out "here they are", the Applicant merely sat passively in his chair with a cup of coffee in one hand and with a sign leaning against his knees and watched as the vehicle containing Mr Christison and Mr Vine passed by. The Applicant, on his own evidence, did so knowing that the vehicle contained non-union employees who were entering the mine during a period of industrial disputation.
[121] Demonstrably there was some significant degree of excitement amongst those in the protest as to the status of Mr Christison and Mr Vine as non-union employees. There was shouting as the vehicle passed by and Mr Kendrick recalls the phrase "scabs" being yelled out and he rushed towards the road when Mr Vine's vehicle passed by. Mr O'Toole recalled that he heard Mr Dwyer "go off" at a point.
[122] There is evidence, also, of large print fluorescent orange painted words on the road targeting both Mr Vine and Mr Christison:
[123] Clearly, Mr Vine and Mr Christison were the subject of some ill feeling on the part of the protestors, or elements therein, and their attendance that day was anticipated.
[124] But in this context, the Applicant sat passively and watched the vehicle containing non-unionists pass by without a sound or any motion at all on his part.
[125] The Applicant also claimed that Mr O'Toole, who was seated beside him, also made no physical movement at all, when Mr Vine's vehicle passed by. But Mr O'Toole's evidence, as set out below, is different, and does not support the Applicant's claim in this regard.
[126] The Applicant claimed that he did not recognise the vehicle that drove by or its occupants. He only knew it to contain non-union employees.
[127] Mr Dwyer gave evidence in these proceedings and before the Magistrates Court that the vehicle was "pretty distinctive" and had advertising on the panels indicating Mr Vine's name and his previous business, and that he could identify both Mr Vine as the driver and Mr Christison as the passenger. Mr Dwyer gave evidence that both he and the Applicant were positioned on the gutter. They were therefore similarly positioned in relation to the passing vehicles (in Mr Dwyer's evidence).
[128] The sign on Mr Vine's vehicle is as set out earlier, and it indicated Mr Vine's name.
[129] Mr Kendrick, at one point in his evidence at least, also stated that despite standing some six or so metres behind the Applicant he not only saw the vehicle pass by but also identified Mr Vine as the driver:
You mean by that that you didn't see Mr Vine's car pass through the protest line at any time?---I saw Mr Vine pass in the car [...].
[130] But being only some metres from Mr Dwyer, and sitting as close to the road as was Mr Dwyer (or on the gutter as Mr Dwyer, Mr Kendrick and Mr O'Toole stated), the Applicant claimed that Mr Vine's vehicle, containing Mr Christison and Mr Vine, was not recognised by him (despite the advertising on the door panel which included Mr Vine's name), was not unique, and that he did not see anyone sitting in the vehicle as it passed by him.
[131] I add that Mr Kendrick, particularly in his evidence before the Magistrates Court, like Mr Dwyer, viewed Mr Vine's vehicle as being distinctive ("an old vintage" Landcruiser). But Mr Kendrick appears to have been positioned differently (being some 4-6 metres behind the Applicant) than was Mr Dwyer in respect of the identification of the vehicle occupants on the day of the protest.
[132] Mr Kendrick also gave evidence in the Magistrates Court that he was anticipating Mr Vine's passage through the protest and "we had a fair idea which car" the non-unionists were in. Mr Kendrick knew Mr Vine's vehicle had to pass through the protest that morning.
[133] The Applicant shared none of the knowledge of Mr Vine's vehicle that was shared by Mr Dwyer and Mr Kendrick, and presumably others (as Mr Kendrick seemingly suggested).
[134] The Applicant claims to be uncertain as to whether he was wearing his white akubra that morning. The Applicant could not tell the Magistrate whether he was wearing the hat that morning or not, though for these proceedings he was more certain he had not worn the hat as it was dark.
[135] Mr Dwyer gave evidence that he (Mr Dwyer) was wearing his white akubra hat that morning, despite the time of day.
[136] Given that Mr Dwyer and the Applicant drove to the picket line together, alighted from the vehicle together and walked towards the protest line together and chatted before separating (or else on the Applicant's evidence walked some distance - 30 metres - to the CWA hall to obtain a cup of coffee), it would reasonably be the case that they would remember that they were both wearing white akubra hats that morning.
[137] That is, the circumstances do not lend themselves to an absence of recall, but to a reason for the preservation of a recollection. The act of having travelled together, and then walking side by side both wearing white akubras might impress itself on one's memory rather than lead to an uncertain recollection (especially when there is no evidence led that any other persons were wearing such hats at the picket line that morning).
[138] The fact that the Applicant and Mr Dwyer, despite these circumstances, both have no recollection about the Applicant's headwear that morning is an issue for consideration in the context of the wider discussion of the Applicant's evidence.
[139] As mentioned above, the Applicant claimed that he and Mr Dwyer, upon arriving at the protest site, walked the distance over to the CWA hall to get a cup of coffee, before going their separate ways.
[140] Mr Dwyer gives no evidence that either he or the Applicant walked off to obtain a cup of coffee from the adjacent CWA hall (some 30 metres from the picket line) before he observed the Applicant making his way over to Mr O'Toole to sit down beside him at the far southern end of the picket. Mr Dwyer simply stated that he and the Applicant walked to the picket line and chatted for a minute and then he (Mr Dwyer) observed the Applicant walking over and sitting down beside Mr O'Toole. Mr Dwyer agreed that he was quite sure about this and that nothing else happened.
[141] This evidence is difficult to reconcile. If Mr Dwyer chatted for a minute with the Applicant and then watched him walk over to Mr O'Toole, then the Applicant did not walk over to the CWA hall to obtain a cup of coffee firstly (and then only recognise Mr O'Toole after having done so). Or else Mr Dwyer is wrong in his recollection, despite some time being spent on the issue in cross examination and his express air of certainty.
[142] Of course, the practical issue of how the Applicant could have stood up with any ease of action and thrown an object when he had a cup of coffee in one hand and was at the same time holding a placard is a matter of some importance in these proceedings
[143] I add that Mr O'Toole claimed the Applicant was carrying a cup of coffee when he was speaking with him that morning. But Mr O'Toole's evidence was uncertain as to whether that was simply a presumption (on the basis that coffee and burgers had been available and utilised by the protesters generally) or was a fact emanating from his direct recollection. In any event, I make comment on the reliability of Mr O'Toole's evidence below.
[144] There is further discussion below as to what was (and was not) in the Applicant's hands at the time Mr Vine's vehicle passed by, this is particularly so in the context of Mr Kendrick's evidence.
[145] Mr O'Toole claimed the Applicant, who was seated next to him to on his right and therefore in his line of site as he watched the vehicle approach, did not move at all when the vehicle passed by nor did he (the Applicant) yell out anything. This evidence reflected that of the Applicant. Mr O'Toole claimed in his written statement that the Applicant neither stood up nor shouted anything as the vehicle went past, but only held up his sign.
[146] Mr O'Toole also said that he could not recall the Applicant standing up though "he might have got up." But he couldn't recall. Under re-examination Mr O'Toole claimed that there was no way the Applicant was standing up (seemingly at any time).
[147] While Mr O'Toole was wedded to belief that the Applicant had done no wrong, his evidence otherwise did not always support the Applicant's case (as mentioned above).
[148] Mr O'Toole gave evidence that when a car went past he would pick up his placard and wave it and yell out "Oi, Oi, Oi". Mr O'Toole therefore was engaged in an activity as a car went "through the picket line" and was not looking constantly or directly at the Applicant.
[149] Mr O'Toole was not at all times focused on the conduct of the Applicant as a consequence.
[150] Mr O'Toole was not aware of the Applicant's conduct at the time Mr Vine's vehicle passed by and generally "didn't pay much attention to the road". In fact he was unaware of who Mr Vine and Mr Christison were, let alone what vehicle they were driving.
[151] Mr O'Toole did not recall anyone yelling, "There they are", as the Applicant (and others) did, nor did he assume, as a consequence, that any particular vehicle containing non-union employees was passing at any particular point in time, as the Applicant did.
[152] Mr O'Toole was unaware as to whether or not the Applicant was wearing his white akubra hat that day.
[153] He also claimed to have a clear line of sight all the way down the picket line. But at the same time contended that he was seated at the far end of the picket line, and a little way back from the gutter, with the Applicant to his immediate right, all of which would have obstructed his view. This of course placed Mr O'Toole and the Applicant within a line of sight with Mr Dwyer. Mr Mackie himself claimed that he could not see up the picket line owing to the assembly to his right and closer to the road (as I have discussed above).
[154] Mr O'Toole also placed himself at a location on the picket line (given it was not a long protest line) a very significant distance indeed (perhaps at a minimum of 10 metres) from where the other witnesses for the Applicant placed him (and the Applicant).
[155] Mr O'Toole claimed that he "never take[s] much notice when talking to people." He remembered no flag poles or banners being near him.
[156] Mr O'Toole's written statement in these proceedings made no mention of the Applicant having a coffee cup with him when he came over, but this evidence was introduced in the course of the cross examination (as it was in the Magistrates Court proceedings).
[157] As is evident, Mr O'Toole's recollections were clipped and partial and not always consistent. And Mr O'Toole admitted, and as was entirely evident from his testimony, that he did not have an authoritative grasp of the details of the morning's events given his low degree of attentiveness generally.
[158] But despite this, Mr O'Toole was adamant that he remembers looking at his watch and noting that the Applicant sat down with him at 5.05 AM and spoke with him for 10 minutes or so, thereby placing the Applicant in his company at the time Mr Vine's vehicle drove past (noting that Mr O'Toole otherwise claimed to have no knowledge of Mr Vine, Mr Christison or the vehicle or the passage of a vehicle containing non-union employees).
[159] Absent this recollection, it would have fallen into contention as to whether or not the Applicant was even seated with Mr O'Toole at the relevant time.
[160] I do not accept that Mr O'Toole possessed such detailed knowledge.
[161] Generally, Mr O'Toole's evidence was far from convincing and his degree of attentiveness to any matter of detail was highly questionable, as I have mentioned (though on the critical matter of chronology he asserts uncharacteristic accuracy). Mr O'Toole simply appeared to be interested in pressing the proposition, too eagerly, that the Applicant was innocent of any wrong doing at the expense of testable evidence.
[162] Mr Dwyer was not at all times aware of the Applicant's actions at the relevant time as he himself was protesting the passage of the vehicle containing Mr Vine and Mr Christison. That is, the Applicant may have conducted himself in a manner not seen or observed by Mr Dwyer (particularly so noting that the Applicant placed Mr Dwyer a few metres in front of him, and to his right). Though I have made comment elsewhere about Mr Dwyer's evidence, Mr Dwyer himself brings no evidence to this matter that is relevant to the Applicant's conduct at the time of the passage of Mr Vine's vehicle through the protest line:
So do you accept this: you can't shed any light on whether or not at the time Mr Vine drove past directly in front of where Mr Mackie was sitting, he was on his feet or threw anything, or both?---No.
[163] Mr Kendrick, for his part, states that he was standing behind the Applicant by some 4-6 metres, and no other person was obstructing his view of the Applicant.
[164] Mr Kendrick also gave evidence in the Magistrates Court proceedings that he had been rushing to get to the picket line to watch Mr Vine's vehicle pass but before he reached the picket line it had passed by. In these moments as he watched the vehicle pass by and accelerate slowly away from the protest, Mr Kendrick claims, in these proceedings, that he observed the Applicant and Mr O'Toole as part of a single sweeping observation of the protest in the context of the passage of Mr Vine's vehicle.
[165] Mr Kendrick gave written evidence that he also saw the Applicant move "slightly out of his chair" and then sit back down again as Mr Vine's vehicle passed.
[166] Under cross-examination, Mr Kendrick described this as a "lurch" forward, but subsequently added the qualification in re-examination that the Applicant did not lift his buttocks from his seat:
As I noted your evidence, you describe it by "he made a lurch"?---Yes, he lurched in the chair.
When you did that (indistinct) you seemed to indicate up and down. Correct?
So you're demonstrating - [...] a lean forward and perhaps a little movement out of the chair and then sitting back down?---No, his bum didn't leave the chair.
[167] Still later in re-examination, Mr Kendrick referred to the Applicant having "sat back down again" when he observed him.
[168] Mr Kendrick's evidence before the Magistrates Court was less elusive. There he gave evidence that the Applicant "half got up" when Mr Vine's car drove past.
[169] In his evidence during these proceedings Mr Kendrick contended that he only saw the Applicant's profile (from standing around 6 metres behind the Applicant) for a "fleeting moment". This claim sits uncomfortably with more detailed observations about the Applicant's movements.
[170] In the Magistrates Court Mr Kendrick had said he saw Mr O'Toole and the Applicant in conversation. This does not accord with his claim that he had seen the Applicant for a fleeting moment, or "a quick glance" only.
[171] This means from being positioned some 6 metres behind the Applicant, Mr Kendrick saw in one "glance" as he watched Mr Vine's vehicle pass by: the Applicant's movement (of whatever kind) in relation to the seat; the Applicant's "profile"; both the Applicant's hands being on his placard; an observation that he could not observe the Applicant's left hand (at what appeared to be the same time); and the Applicant in conversation with Mr O'Toole.
[172] Mr Kendrick also retained both the images in the foreground (the seated couple and the Applicant's movements in particular) and in the background (the moving vehicle passing by and accelerating away). This is never an easy task of observation other than when an individual is fully concentrating for that purpose (and Mr Kendrick had no such purpose).
[173] Mr Kendrick tried to explain these tensions in his evidence to some measure at least by claiming his evidence before the Magistrates Court, in relation to having seen the Applicant and Mr O'Toole in conversation, was an assumption only given the fleeting period of his observation (though it was not so qualified before the learned Magistrate at the time).
[174] Mr Kendrick also observed that both the Applicant's hands were on his placard. If so, the cup of coffee claimed to be held by the Applicant (on the Applicant's evidence and that of Mr O'Toole - though not of Mr Dwyer) must have been disposed of or relocated at the time Mr Vine's vehicle crossed the picket line.
[175] The Applicant gave evidence in the Magistrates Court proceedings that though he was at a protest he was not saying or doing anything
[176] Mr Kendrick twice referred to the Applicant having multiple placards or posters in his hands. His fleeting observation permitted him to discern that the Applicant firstly had his hands on the placards as the car drive past and then as he "sat back down" the Applicant was further observed to be rearranging the placards in front of him.
[177] There is no coffee cup, nor can there be one, in the Applicant's hand at these various stages of Mr Kendrick's evidence.
[178] Mr Kendrick also gave evidence, however, that the coffee cup had seemingly re-appeared in the Applicant's hands as he moved to meet Mr Dwyer and Mr Kendrick after Mr Vine's car had passed by (though at another time his evidence is less clear by far that the Applicant had a cup of coffee in his hand when he came over to talk with him and Mr Dwyer).
[179] Mr Kendrick conceded under cross examination that he could not "discount at the time that [the Applicant] threw an object" at Mr Vine's vehicle as it passed by. Under re-examination he adopted the position that he believed the question he had answered had been a "trick question" and it was not possible for the Applicant to have made the movement to have thrown an object.
[180] As is evident from the above discussion, Mr Kendrick's evidence is not without its difficulties.
[181] Mr Hannaford was a former contractor at the mine, had been made redundant and now runs his own business. For some entirely curious reason (on the basis of the explanation he gave) he sought to be summonsed to give his evidence in these proceedings.
[182] Mr Hannaford was not a CFMEU member at the time of the incident described above. Mr Hannaford's evidence in this matter was made memorable by his unusually agitated state under cross examination. This included him striking his witness statement with some force with his right hand on two occasions when his claims were questioned.
[183] It is not unusual for an applicant to experience some anxiety under cross-examination. As a key witness for the Respondent, Mr Christison exhibited some measure of anxiety when his evidence was pressed. But Mr Hannaford's level as anxiety was marked and of an entirely unusual level. Mr Hannaford seemed to suggest that this might be because of a heart condition that he had developed in recent times, though nothing further was put on in this regard.
[184] Mr Hannaford's evidence was not required for the purposes of the Magistrates Court proceedings and no comparator is available (unlike with the witness evidence discussed above). Mr Hannaford's evidence was available prior to the Magistrates Court proceedings, I add.
[185] As stated above Mr Hannaford's evidence was effectively that Mr Christison had commented to him that he believed a number of his co-workers such as Mr Mackie were "sheep" and "backstabbers" and that he would "pick them off one by one". Specifically, Mr Hannaford says Mr Christison stated as follows:
"They are all a bunch of sheep. I am going to pick them off one by one, Glen, Bekkie and Tony. They're a bunch of backstabbers."
[186] Mr Hannaford's evidence initially was confused by Mr Hannaford claiming that he had initially contended that this information was conveyed to him by Mr Christison in the latter part of 2011. It appears that he had initially informed the Applicant's solicitor in such terms (and this was the claim made in the Magistrates Court proceedings).
[187] For these proceedings Mr Hannaford claimed the information was conveyed to him "just prior to the incident", in March 2012, arguing that he had been confused and that events, seemingly, had been "rolled up" in time.
[188] In giving evidence Mr Hannaford generally exhibited a questionable grasp of chronology. Apart from the above matter, Mr Hannaford could not recall when he commenced working at the mine (2011 or 2012), or when he ceased working at the mine, or the dates of any salient telephone conversations raised in cross examination (without considerable assistance).
[189] Yet, for all of this, Mr Hannaford otherwise was able to place (notwithstanding the chronology asserted in the Magistrates Court proceedings) the approximate date of the alleged conversation with Mr Christison (which was immediately prior to the picket line incident or on or about March 2012).
[190] Mr Hannaford could remember little of the "conversations" he had with the Applicant (though the Applicant claimed they seemingly had had only one such conversation) or be of any assistance as to how his evidence came to be identified for the purposes of making a statement. But he could recall comments made to him by Mr Christison in March 2012.
[191] Mr Hannaford's claim about the conversation with Mr Christison (and it does not appear to have been a rich conversation at all) was that Mr Christison climbed into his truck and, when asked how he was, made the comment as alleged.
[192] Mr Hannaford claimed that when the comment was made he made no response or inquiry himself as:
"I didn't want to know anymore. I didn't want to get involved [...]."
[193] Mr Hannaford's desire not to become involved, or know any more about what it was Mr Christison was talking was not borne of a concern there was a substantial issue afoot in respect of which he sought not to become entangled.
[194] Rather, Mr Hannaford stated the comment did not concern him at all. He stated that he did not report the conversation as he believed Mr Christison was simply "blowing off a bit off steam that he's having a bad day" and that the statement was not "threatening" and (he also agreed it was) not "a big deal."
[195] Mr Christison's reaction was such that he did not invite any further discussion between Mr Hannaford and Mr Christison over the course of the journey together and bar that comment nothing else was said (despite Mr Hannaford believing that Mr Christison had been just "blowing off steam"). Mr Hannaford had no curiosity about the comments and said absolutely nothing in reply when they were allegedly made to him, despite their nature, and despite his absence of concern about those remarks. The journey simply continued in silence.
[196] Mr Hannaford's evidence, which I have heard, has the hallmarks of concoction. The comments as alleged have an uncertain origin in time. They are recalled in detail when the witness has little grasp of any surrounding details of any other conversations (or chronology). The comments as alleged are abstracted and have no context whatsoever. And Mr Hannaford's claimed reaction to them (even putting aside his agitated presentation), adds to the overall air of artificiality that affected his evidence generally.
[197] The Respondent maintains a Code of Conduct (the BHP Billiton Code of Business Conduct), which underpins a charter (referred to as "Our Charter").
[198] There are a number of values specified in the charter, one of those is integrity, another being respect. Reference is made to the need to maintain a workplace free of harassment and bullying, and that this extends to freedom of association matters.
[199] The Respondent maintains that the conduct of the Applicant was such to impugn both of those values.
[200] The Company contends that those values must be reflected in the conduct of employees whom it employs.
[201] The charter referred to above refers to the responsibilities of those working for BHP Billiton and BMA.
[202] It requires that all employees and contractors working for or on behalf of BHPB and BMA must:
Agree to uphold a commitment to respecting the values of BHP Billiton Charter;
Adhere to the principles and requirements contained in the BMA Workplace Conduct Policy [...].
[203] Section 387 of the Act provides as follows:
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.
(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)
[204] On the evidence I have discussed above, I am persuaded that on the balance of probability, the Applicant is responsible for throwing an object at Mr Vine's vehicle as Mr Vine and Mr Christison passed through the picket line and made their way to the mine site early in the morning on 29 March 2012. Though the evidence of Mr Vine and Mr Christison gave rise to some issues of consistency over time, which I have discussed above, their central claim that they identified the Applicant as being the person who threw an object at their vehicle from the protest line on 29 March 2012 was undisturbed. Thus, broadly my finding on the critical issue of fact is as that of the learned Magistrate at first instance in this regard (though I was afforded the opportunity to consider a wider body of evidence).
[205] I add as no more than a passing observation that I would find it most counter intuitive for the two persons concerned to conspire to damage the reputation of either or both the CFMEU or the Applicant in such a public context, where their claims were open to contest by so many persons. Had Mr Christison and Mr Vine been so disposed they reasonably might have contrived a less public context in which to make their accusations. Mr Hannaford's evidence (on which I have commented specifically) gave rise to the implied conspiracy claim.
[206] Further still, the witness evidence for the Applicant did not provide an effective reason to question in any substantive manner the claims made by Mr Vine and Mr Christison as to identification. The Applicant's own evidence as to his passivity in the context of the protest and lack of knowledge about the ownership of the passing vehicle and the identity of its occupants strains credulity in the wider evidentiary context I have set out. The factual matrix concerning his proximity to the road and to Mr Dwyer, possession of a cup of coffee at the relevant time (which hamstrung his capacity to throw an object) were all subject to competing claims by his own witnesses. I also have cause to question the genuineness of the Applicant's recollection (in the particular circumstances) as to whether he was wearing his white akubra hat (which Mr Christison identified). There is also no reliable evidence of a corroborative kind to support the Applicant's claims that he did not throw an object at Mr Vine's vehicle. I have discussed this evidence at some length above and, having had the opportunity to hear each of the witnesses, commented on its weaknesses, contradictions and unreliability.
[207] But it is the evidence of Mr Christison and Mr Vine that is central to the determination as to the conduct which occurred on 29 March 2012. Mr Vine and Mr Christison both presented as creditable witnesses, and their evidence I have found to be reliable upon scrutiny. In this latter regard, I have found so in the context of my discussion of their evidence above.
[208] The throwing action and the flight of the object (which struck the ute canopy) caused Mr Vine to swerve his vehicle somewhat, perhaps more as "flinch" reaction.
[209] The Applicant's conduct (as made out on the civil burden of proof) could have jeopardised the safety of those along the picket line, as well as the safety of Mr Vine and Mr Christison as they made their way to work.
[210] The conduct also was a very regrettable attack on two mine co-workers.
[211] Demonstrably, it is not conduct that sustains a cooperative, productive or safe workplace.
[212] It was conduct, also, that was inconsistent with the Respondent's workplace conduct and behaviour policies, with which the Applicant was familiar. The Applicant attended a Code of Conduct training course in February 2012.
[213] For these reasons, the Respondent had a valid reason for the Applicant's dismissal.
[214] I add further that having so identified the conduct and having characterised it as I have, the dismissal was a proportionate response to that conduct.
(b) whether the person was notified of that reason
[215] The Applicant had been notified of the reason for the dismissal. The various allegations were put to him.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[216] The Applicant had numerous opportunities to put his case in response to the allegations to his employer. There were some five meetings between the 29 March 2012 incident and the date of the dismissal (4 April 2012), which was communicated in the fifth meeting. The Applicant declined to provide any response to the allegations (bar indicate he was innocent) owing to legal advice given to him in the context of the (pending) police charges.
(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
[217] The Applicant was represented throughout the meetings leading up to the dismissal.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[218] No issue of performance arose in these proceedings. Performance issues were unrelated to the conduct issue at the core of the allegations.
(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
[219] No relevant submission was made in respect of this provision, and none would be expected given the size of the Respondent's undertaking.
(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
[220] No issue arises in respect of this provision as the Respondent did not labour under any deficiency of human resource expertise. The matter was overseen by the Respondent's manager of human resources at the mine site, Mr Reginald O'Connell, who has very considerable experience in the field.
(h) any other matters that the FWC considers relevant
[221] The Applicant had been employed for some six years and nothing of any substance was raised in relation to the performance of his duties or conduct other than in respect of the incident before me. I state this knowing that at the dismissal meeting a reference was made to a warning given previously for engaging in conduct that was in breach of the Code of Conduct. Nothing of any evidentiary value was put to me about any such conduct.
[222] The dismissal was also said by the Applicant to have been harsh because of its effects on his financial circumstances (noting he currently has a lower rate of pay and has lost certain other benefits referred to earlier), and that he now must travel longer distances to work.
[223] Notwithstanding the Applicant's length of service and record of employment, the absence of any substantive interactions between the parties in the investigatory phase of the matter, and other effects of the dismissal as outlined, the conduct for which I have found the Applicant to be responsible was of a serious nature. I have said as much earlier.
[224] The decision to dismiss the Applicant was proportionate to that conduct as found. This is because an employer cannot expect to maintain an employee in its workforce who has conducted himself in such a way in relation to his co-workers, put the safety of many others at risk, and abandoned any commitment to the broader conduct expectations as clearly communicated and understood.
[225] The dismissal was not harsh, unjust or unreasonable.
[226] The application for a remedy for unfair dismissal is therefore dismissed.
Mr D. Kent of Counsel (instructed by Hall Payne Lawyers), for the Applicant
Mr S. Meehan of Counsel (instructed by Ashurst Australia), for the Respondent
Final submissions on discretionary power, received 27 June 2013.
Printed by authority of the Commonwealth Government Printer
Mackie
BHP Coal Pty Limited [2013] FWC 3503