Maritime Union of Australia v DP World Melbourne Ltd

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 74 of 2014

AND: DP WORLD MELBOURNE LIMITED (ABN 52 000 049 301)

JUDGE: JESSUP J DATE: 10 December 2014 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Until dismissed from his employment in circumstances which led to the present proceeding, the second applicant, Mark Johnston, was employed as a stevedore by the respondent, DP World Melbourne Ltd, at West Swanson Dock ("the terminal"). He was a member and delegate of the first applicant, the Maritime Union of Australia ("the Union"), an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth). His employment was covered by the DP World Melbourne Enterprise Agreement 2011 ("the enterprise agreement"), an enterprise agreement made under, and a "workplace instrument" within the meaning of, the Fair Work Act 2009 (Cth) ("the FW Act"). 2 On 28 January 2014, the respondent summarily dismissed Johnston from his employment. The ostensible reason for that dismissal was Johnston's misconduct in advising a fellow employee to lie when questioned by the respondent's management about his own conduct and in directing offensive invective at another fellow employee on account of her having given information to management about the first employee's conduct. In this proceeding, the applicants allege that the reasons for Johnston's dismissal were, or included, reasons which made the dismissal unlawful under Pt 3-1 of the FW Act. They also allege that the termination of Johnston's employment was a wrongful dismissal under his contract, and that he elected to affirm the contract and is entitled to specific performance, or alternatively, damages. 3 Johnston was first employed at the terminal in February 1990. He became a delegate for the Union in 1996, and had been a delegate ever since. His work involved driving a "straddle carrier" at the terminal. Employees such as Johnston were either "fixed salary employees", as Johnston himself was, or "variable salary employees". Johnston was a delegate for the fixed salary employees. He was a longstanding member of the Employee Representative Committee ("the representative committee"), a consultative forum of representatives of management and employees which met regularly, usually about monthly. It seems that, on the employee side, the members of the representative committee were the various delegates of the Union at the terminal. 4 The evidence on which the applicants relied in their case under Pt 3-1 of the FW Act covered various events and circumstances in what, I would find, was the normal conduct of industrial relations at the terminal. Johnston was involved in them as a delegate and member of the representative committee. Absent a perspective that was conditioned by the need to make good a case under Pt 3-1, there was nothing in those events and circumstances that stands out as something that might have given the respondent, or any employer, any reason to consider the termination of Johnston's employment. So far as the evidence discloses, Johnston was operating as union delegates do, advancing his members' interests in relation to concerns and issues that arose from time to time. In due course, I shall have to consider those events and circumstances, since Johnston's activities in relation to them are now alleged to have been amongst the reasons for which he was dismissed. I propose, however, to commence by laying out what I would have to say are the real facts of the case - that is, the facts which actually led to Johnston's dismissal - and the processes by which the respondent determined that he should be dismissed.

The facts leading to Johnston's dismissal 5 On 17 July 2013, one of the straddle drivers employed by the respondent at the terminal, Stewart Bennier, was moved to a different work location without any reason, at least that was apparent to him. At his break, he asked one of the foremen why he had been moved. That foreman did not know, and was not able to accompany Bennier "upstairs" (the euphemism used at the terminal for the management offices) to find out. On the foreman's advice, Bennier then asked another of the respondent's employees, Daniel Madigan, to accompany him. Seeing that Bennier was (and here I relate Bennier's recollection of Madigan's words) "a little bit fuming angry", Madigan offered to go upstairs himself on Bennier's behalf to find out what was going on. By this stage it appeared to have been established that it was the supervisor, Stephen Templar, to whom Madigan would need to speak. 6 Upon his return about 15 minutes later, Madigan told Bennier that Templar was very upset that he (Bennier) had changed positions without telling him (Templar). That change of position was not the one on 17 July 2013 to which I have referred. It was a previous change which, it seems, Bennier had implemented of his own accord. Bennier's response was to refer to the other members of the workforce who had regularly changed position, and complained that he appeared to have been the only one to have, in effect, got on the wrong side of Templar as a result of it. At this point Madigan told Bennier that Templar had expressed the view that he (Bennier) was not competent enough to be "working over the crane", and "you're not a team player". This must not have been well-received by Bennier, because Madigan then said to him, "Look, don't get upset, just go and do your job and just try to forget about it." 7 On the following day, 18 July 2013, Bennier and Madigan were in conversation seated at a table in the amenities room at the terminal. Referring to Templar, Bennier said, "I'm still angry at what he did to me." It is what Bennier said next that started the ball rolling apropos the events which ultimately led to the termination of Johnston's employment. Bennier's recollection was that he said, still referring to Templar, "how dare he call me not a team player when he's fucking Annette Coombe behind Peter's back". Coombe was another stevedore in the respondent's employ. The "Peter" referred to by Bennier was Peter Whelan, also a stevedore and believed by Bennier to be in, or to have been in, a personal relationship with Coombe, the specific nature of which (ie husband, fiancé or similar) Bennier was unaware. 8 Another stevedore who was in the amenities room at the time, Sharon Bowker, overhead what Bennier had said to Madigan. She gave evidence. Her recollection was that Madigan had told Bennier that Templar had said that he (Bennier) was not a team player. Bennier's response was, "who the fuck does he think he is saying I'm not a team player when he's fucking Annette Coombe?" Bowker's evidence departs from that of Bennier in one material respect only, namely, that Madigan had then said, in her hearing, that Templar had accused Bennier of not being a team player. It will be recalled that, according to Bennier's evidence, he had been told about that the previous day. This slight discrepancy - on which nothing turns - was not explored in the cross-examination of either witness, however, and I am disposed to think that the subject might well have been mentioned again by Madigan in the amenities room as part of a general, casual, conversation. 9 According to Bowker's evidence, when she heard what Bennier said to Madigan about Templar, she said to him, "Do you know if that's true?", to which Bennier responded, "Well, everyone is saying it". Bowker repeated her question, "Well, do you know if it's true?", to which Bennier's response was to shrug his shoulders. According to Bowker's evidence, she then said to Bennier, while pointing her finger at him, "It's not appropriate. It's not fair that you're dragging Annette into your problems with Stephen Templar. He's a married man. It's not fair to her. If you've got any issues with Stephen Templar, you need to take them upstairs yourself. What you're doing is wrong. What you're all doing is wrong." This last comment appears to have been directed to the situation, as reported by Bennier, that others in the workplace were speaking of Templar and Coombe in the same terms as he had to Madigan. Although less elaborate, Bennier's evidence was consistent with Bowker's. 10 In her evidence, Bowker said that, after she had upbraided Bennier in the terms I have set out, she could "see his demeanour change … he wasn't aggressive … I knew that he knew he had done the wrong thing." Bowker said that she knew Bennier, that he was "not a bad person", and that "he wouldn't normally talk like that." 11 On a day which Coombe placed as Sunday 28 July 2013, Bowker saw Coombe in the car park as they were arriving at, and departing from, work. Bowker told Coombe about the exchange between Madigan and Bennier in the amenities room on 18 July 2013. She did so because she was concerned that "it would have got back to her and maybe not reported accurately". She related accurately what Madigan and Bennier had said. According to Bowker, on hearing this news Coombe rolled her eyes and said, "I'm sick of this. I'm over it." She gave Bowker to believe that every time Templar reprimanded somebody, she (Coombe) would get "dragged into it" (Bowker's words in her evidence). According to Bowker, Coombe did not cry, but it was clear that she was annoyed. 12 A couple of days later, Coombe telephoned Bowker and told her that she had decided to lodge a complaint with management about Bennier's comments. She wanted to know whether Bowker would verify the accuracy of the matter complained of, and would be prepared also to verify what had happened if called upon by management to do so. Bowker agreed to do this. In her evidence, Coombe said that she complained to management because "these comments had been ongoing for two years". Every time she was dealt with in a way that might be perceived as involving favourable treatment, such as receiving an overtime shift or a shift extension, she was subjected to crude comments about her doings with Templar or others. Further, according to Coombe's evidence, these kind of comments were associated with "behaviours displayed towards [her] which [she believed were] consistent with bullying." Indeed, she said that "the behaviours [were] far worse than the rumours." When she raised her concerns with management, she was told that nothing could be done unless she had a witness. Bowker's readiness to support her in a complaint against Bennier gave her the witness that she needed. 13 On 31 July 2013, Coombe prepared a written complaint about the comment made by Bennier. I do not need to set out the terms of that complaint, as it followed closely Bowker's version of events on 18 July 2013, as set out above. Coombe addressed her complaint to Sheryl Pastro, the Human Resources Manager at the terminal, with a copy to Vlad Jotic, the Operation Superintendent there. She said that Bennier's comment was false, offensive, slanderous, disrespectful and damaging to the integrity, character and reputation of Templar and herself. 14 On 5 August 2013, Jotic required Bowker to meet with him in his office. She went to Jotic's office, where he told her that that there had been a complaint made in relation to a discussion in the amenities room in which she had been involved. Bowker said that she understood what Jotic was talking about. Jotic said to her: "This is very serious. It has been very upsetting for Annette and Stephen and for his family." He said that she would be called into the office the following day, and that she should think about what she was going to do. Bowker said that she would verify the complaint, but that she was concerned for Bennier. 15 On the following day, 6 August 2013, Bowker received a message to the effect, so far as she recalls, that she was needed in Pastro's office. She was working on the afternoon shift at the time, from which she placed this summons some time after 2:30 pm. Bowker proceeded to Pastro's office, where she met with Pastro and Jotic. She corroborated the complaint as set out in Coombe's memorandum of 31 July 2013. She made a point of asking them to inform Bennier that it was she who had verified Coombe's complaint, because she did not want Bennier to be left in a state of uncertainty as to which of his workmates was responsible for him having to defend Coombe's allegation. 16 Later in the afternoon of that day, Pastro and Jotic sent for Bennier. When he got the message that he was required "upstairs", as he put it, he was working in his straddle crane. He had an inkling that the reason he was required upstairs related to his comment to Madigan because, about a week previously, he had been told by Templar that he (Bennier) "will be speaking with HR on Monday". Johnston was the union delegate on duty that day, and Bennier asked him if he would accompany him to the meeting upstairs. According to Bennier's evidence, he met Johnston in a small office outside the amenities room, and told him that he had to go upstairs to speak with Jotic and Pastro. Johnston said, "I've got a rough idea what it's about." Bennier briefly explained what had happened on 17 and 18 July, and referred to the comment which he had made in the amenities room about Coombe and Templar. Bennier was worried about the situation in which he found himself. He said to Johnston, "Look, I'm shitting myself about this. I could lose my job over this." According to Bennier's evidence, Johnston's response was "We will go upstairs, just deny [and] you will be right." 17 Johnston denied that he had told Bennier to deny the allegation against him. His version of his advice to Bennier was, "Let's go up and listen to what management have to say. We don't know what it's about. Go and listen to what management have to say. If it is that - and you've just briefly told me your version of it - you stick to that story." This conflict of evidence as between Bennier and Johnston will have to be resolved, but I propose next to refer to the meeting which these men had with Pastro and Jotic. They proceeded to that meeting after the discussion to which I have just referred. 18 At the meeting, which commenced at about 4:15 pm on 6 August 2013, Jotic told Bennier that he and Pastro were investigating a complaint that had been made about something that Bennier had allegedly said up in the mess room, namely, that Templar was (according to the delicate way in which Pastro put it in her evidence in chief) "effing Annette Coombe", and wanted to hear his response to that allegation. Bennier denied the allegation. He said that he could not recall making the comment, and, according to Pastro's evidence, did not "really clarify that there was any discussion between him and Sharon Bowker, and maintained that he hadn't said anything to that effect." According to Jotic's evidence, Bennier "essentially gave a no comment interview". According to Bennier's evidence, "I lied and denied it. Yes, they just kept questioning on the same question - what happened that night, what I said, and I just denied, I didn't say what I said." 19 In the course of this meeting, and conformably with Bowker's wish previously expressed to Pastro, Pastro told Bennier that Bowker had made a statement about the matter. According to Pastro's evidence, Johnston did not react well to that information. His comment was, "this doesn't normally get to management - this is normally handled in-house." Johnston accepted that he probably would have said something to that effect, adding, "that's how we've pretty much always handled the majority of issues down there." 20 Jotic and Pastro then interviewed Madigan, but that involved a very short, inconclusive, discussion. According to Pastro's evidence, Madigan said that he did not recall Bennier making any comment about Coombe or Templar. Neither did he recall a discussion between Bowker and Bennier. 21 Pastro and Jotic did not believe what Bennier had told them. According to Pastro's evidence, the manner in which he answered their questions at the meeting made them think that he was not telling the truth. Accordingly, they invited him to return for a second meeting (still late on the afternoon of 6 August 2013), at which time they asked him whether he was sure that he didn't make comments regarding Coombe and Templar sleeping together, and that he was sure that he was telling them everything; and they asked him whether there was anything else that he wanted to say in regard to the matter. In response, Bennier maintained that he had not said anything about Coombe or Templar. Johnston, who again accompanied Bennier at this meeting, said in his evidence that Bennier "got grilled for … 15 minutes about whether he mentioned Annette Coombe's name" and his response was, "No. No, no, no, no. Denied." 22 Something of significance to the present case occurred on 6 August 2013 between the two meetings which Bennier and Johnston attended with Pastro and Jotic. As mentioned above, Johnston was concerned (to use a term at the mild end of the spectrum) that a union member had taken her complaint about the behaviour of another union member to management. Although the actual complainant was Coombe, it was Bowker who, as Johnston correctly understood, had been the direct witness to the conversation between Bennier and Madigan. In the first meeting with management on 6 August, Johnston formed the impression that Bowker had made a written, signed, statement on the subject, since Pastro appeared to be reading from such a statement in the course of putting the allegation to Bennier. As it happens, that was not correct: the only written statement in Pastro's possession was the one made by Coombe, while Pastro had her own notes of the meeting at which Bowker had corroborated the details of Coombe's complaint. But Johnston came away from the first meeting with the strong impression that Bowker had made a written statement in support of Coombe's complaint. As he said in his evidence, "I had never heard a statement read out against another employee in all the years I've been a delegate." 23 Johnston then rang the Deputy Secretary of the Victorian Branch of the Union, David Schleibs. He told Schleibs that he had just represented Bennier in a meeting with management, and that management had read out accusations which he thought were "fairly serious". He told Schleibs about Bowker's statement and, according to Johnston's evidence, "Dave was the same as me. He was shocked." Schleibs said that he had just had "those two in my office yesterday or the day before and working through the issues". The employees referred to as "those two" were Coombe and Bowker. In his evidence, Schleibs said that he could not understand why, if Bowker had a problem with another member, she would not have involved the Union to try to resolve the issue. He asked Johnston to have Bowker call him. 24 Johnston then went looking for Bowker with a view to having her call Schleibs. He found her in the amenities room. Commencing with Bowker's evidence, she said that "the room was pretty full. There were a lot of people milling around …." She was seated at one of the tables when Johnston entered the room and asked to talk to her. She stood up and they walked a short distance away from the table. Johnston said to her, "I've just had to go upstairs. I've just had to front with Stewart Bennier…You've just put in a complaint about Bennier, you fucking lagger." Bowker said that she had not put in a complaint. Johnston said that she had, and that he had "read it, word for word", adding, "I saw your signature on it." Bowker folded her arms and said that was incorrect, and that she had not made a complaint, and that there was no document with her signature on it. Johnston then said that he had spoken to Schleibs, and continued, "You need to find yourself a solicitor. You're going to find yourself in court and the MUA aren't supporting you. Never in my life have I been up in the office and had someone's name mentioned to me like that. You're a fucking lagger." Bowker tried to explain to him that she had not made a complaint, but had been upstairs as a witness in relation to a complaint. But Johnston did not believe her. As Johnston turned to leave, he threw his arms in the air and said "I hate people like you." Bowker interpreted this as Johnston walking off on her while she was trying to defend herself. 25 Johnston walked out the door of the amenities room on to a balcony which acted as a connection between the door and a flight of stairs, external to the building, which gave access to the room (the room being on the first floor of that building). Bowker followed him. On the balcony, she said to Johnston, "Mark … just don't turn this into something big. You know what has been going on with Annette in the workplace and she's just trying to get it sorted out. She doesn't want anything but an apology from Stewart Bennier." Johnston's response to Bowker was, "I haven't got time to talk to you. I've got to go back upstairs with Bennier and you need to call Dave." From the balcony, Bowker could see Bennier waiting at the foot of the stairs. She saw Johnston descend the stairs, meet with Bennier, and depart together with him. 26 Turning next to Johnston's evidence, he said that, when he drew Bowker aside in the amenities room, he said, "Look, I - I can't believe - I just walked up and represented Stewart Bennier and you - you put in a statement against him." Bowker responded that she had not signed anything. Johnston said, "I don't care what you done. You made a statement against another employee. I can't believe that, Sharon. That's lagging." He then walked away, saying as he did, "Just phone David up." Johnston denied that he called Bowker a "fucking lagger"; that is to say, he denied using either of those words. He denied telling her that she needed to find a solicitor because she was going to be in court, and he denied saying that the Union would not support her. According to Johnston, Bowker did not follow him out on to the balcony and, necessarily, at no time was he arguing with her there. Bennier was not waiting at the foot of the stairs after his (Johnston's) conversation with Bowker: at the time, he did not even see Bennier. He did descend the stairs with a view to keeping an appointment with Bennier (to proceed to the second meeting with management), but he had to wait for Bennier to arrive. 27 The next witness to give evidence on this subject was Stephen Walmsley, a stevedore employed by the respondent at West Swanson Dock. He was in the amenities room on 6 August 2013 when Johnston and Bowker were having their conversation. To him, Johnston did not appear angry, and Bowker did not appear upset. On the other hand, the conversation he observed struck him as unusual because Johnston and Bowker were not known to be friends - not "in the same circle", as Walmsley put it. He asked Johnston what was happening, or what was "up", but he got no response. Johnston simply walked out of the room. In his evidence in chief, Walmsley said that he followed Johnston out on to the balcony, where they conversed for a very short period, enough time for Walmsley to learn from Johnston that "he had fronted management with another employee". While he was there, Bowker was not on the balcony. 28 Bennier also gave evidence about these events, at least to the extent of the controversy about who was on the balcony, and for what purpose. He was still with Johnston after the two had come from the first meeting with Pastro and Jotic. From ground level, Johnston went up the stairs, while Bennier waited for him at the foot of the stairs, intending to return to his work station. It is apparent that Bennier had not by then been told by Johnston that they had to return for another meeting with management. Although Bennier said nothing about it, I would infer that Johnston had by then had his phone conversation with Schleibs, since it was from that conversation that he was given the mission to find Bowker, which explains why he went into the amenities room. At some point while he was waiting at the foot of the stairs, Bennier saw Johnston and Bowker in conversation on the balcony. He said that they were not "really yelling" but were "raising their voices a bit". While he could hear them talking, he could not, for the most part, make out what they were saying. The only thing he could make out was Johnston saying something along the lines, "Don't come to us for help". Under cross-examination, Bennier was firm in adhering to this aspect of his evidence, and convincingly so. When Johnston descended the stairs and joined Bennier, he said to him, "Sharon is shitting herself now. I told her if she wants any representatives from the Union or help from the Union, don't come to us." When this was put to Johnston in cross-examination, his response was, as it had to be, that Bennier was not present at all when he came down the stairs. 29 I refer next to a matter which was mentioned only by Jotic in his evidence, and I do so because Jotic placed it at about 6 pm on that day. Bowker arrived at Jotic's office, and she was "quite distressed". According to what she told him, what had distressed her was the way she had been treated in the amenities room by Johnston. She said that Johnston had spoken to her regarding her discussions with management on the Bennier matter. Jotic's evidence was, "I believe the words he used were that she was a lagger for speaking to management and that she shouldn't have approached management on this." Jotic was cross-examined on this evidence, but not so as to suggest that the conversation had not taken place at all. In the course of that cross-examination, Jotic held to his evidence that Bowker had said that Johnston had called her a "lagger", as distinct from merely having said that she was "lagging". 30 Whether before or after her meeting with Jotic just referred to, Bowker rang Schleibs as Johnston had suggested. I shall briefly relate the evidence of each of them, but any attempt to resolve such conflict as there may be would be effectively undermined by two circumstances: first, Schleibs was not cross-examined about the conversation at all, and secondly, neither party placed any reliance on the conversation in final submissions. 31 According to Bowker's evidence, she told him that she had been confronted by Johnston, that he had accused her of making a formal complaint. She told Schleibs that Johnston had said that he had read her statement word for word, that she needed to get a solicitor as she would find herself in court, that he hated people like her and that she was a fucking lagger. Schleibs said that he had been told the same thing by Johnston. Bowker told Schleibs that she had not made a complaint, but had been a witness to a complaint, to which Schleibs responded that that was OK: she had done nothing wrong if she had just been a witness to a complaint. He told her that he supported her for standing up for Coombe. He told her not to worry about the matter. 32 Schleibs' evidence about this conversation differed from that of Bowker in some important respects. He said that Bowker told him that Bennier had made a rude comment about her friend and fellow workmate, that she had challenged Bennier on that statement and that she had gone to management and made an official complaint. Schleibs said that Bowker was "quite upset that [Johnston] had spoken to her". She told him that Coombe had gone through a lot of issues in the workplace, and she believed that her standing up for Coombe would help the situation. 33 At the end of this conversation, Schleibs asked Bowker whether she would be prepared to participate in a meeting involving herself, Johnston and the Charge Foreman, Phil Buttress, to try to resolve the issue. "The issue", of course, was the question whether Bowker had made a complaint as such (as Johnston thought to be the case) or merely acted as a witness in management's consideration of a complaint lodged by someone else. Bowker agreed to that course, and Schleibs rang Buttress and arranged for such a meeting to occur. It was held in the old foremen's room above the amenities room. 34 As between the witnesses who were involved in that meeting, there was some difference in recollection as to the course which was followed, at least at the outset. Of those who were present in person, Johnston, Bowker and Buttress, Johnston and Bowker gave evidence. Schleibs also participated, by telephone. According to Bowker's evidence, the point at which Schleibs was on the other end of a telephone call was a very brief (at least so far as she was involved) interchange in a shelter that was used by smokers. When she arrived there, Buttress and Johnston were already in conversation, and they had Schleibs on the speaker phone. Buttress asked her to join him and Johnston, and said that Schleibs had verified that she had the Union's "100 per cent support." Then, when Bowker's arrival was announced to Schleibs, the latter said, "That's right, Sharon. You've got the Union's hundred per cent support on this." Then Bowker, Johnston and Buttress proceeded to the old foreman's room. According to Johnston's evidence, Schleibs was present by telephone during the discussion in the old foreman's room. This divergence in evidence was not taken up with Johnston during cross-examination, and when it was so taken up with Bowker, she adhered to her evidence that Schleibs was on the telephone only during so much of the conversation as took place in the smokers' shelter. Subject to that inconsequential rider, I shall relate the evidence of this meeting as though it proceeded entirely in the one location. 35 According to Johnston's evidence, in the meeting Bowker was intent on making him understand Coombe's position, and the difficulties she faced in relation to the rumours that were circulating about her. He told Bowker, in effect, that he did not want to go into any of that, but that he had no problem with her supporting Coombe. The point he made to Bowker in the meeting was that he did not agree with her "going to management". In his evidence, Johnston said that he would have said 20 times to Bowker in the meeting, "I applaud you for sticking up for your friend in the mess room. You had done what you had done. The only thing I had an issue with was going and making a statement to management." Johnston denied that he was "upset" with Bowker on this account, describing his position as "frustrated". After what Johnston estimated was about two hours of "toing and froing", he thought that he and Bowker had reached an agreement. When asked in chief what that agreement was, Johnston said, "We arranged … to meet in the morning with Phil Buttress and go to HR at 9 am … to sort the issue that Sharon had with - with the statement, the Stewart Bennier thing, the - whatever, just to sit down and - and work it out." The "9 am" referred to would have been two days later, 8 August 2013, as the following day, 7 August, was not a working day for him or Bowker. Johnston asked Buttress to arrange for this meeting, but, for some reason unknown to Johnston, the meeting did not take place, at least not at 9 am on 8 August. 36 According to Schleibs' evidence, the main matter in dispute at the meeting was whether Bowker had made a written statement of complaint to management. Bowker said that Pastro had been making notes during her interview with management, but she (Bowker) never signed a record of interview as a statement. Bowker asked Schleibs to ring Pastro to arrange a meeting at which Johnston and herself would be present, with a view to clarifying whether Pastro was holding a statement by Bowker, or merely her own notes of the interview with Bowker. Schleibs agreed to contact Pastro to arrange such a meeting, which would have to be on the morning of 8 August as both Johnston and Bowker were to be off work the following day, 7 August. 37 The meeting was described by Bowker as a "mediation". In dispute, at least at the outset, was the nature of the contribution which Bowker had made to management's investigation of the Bennier incident. Johnston was "adamant" that he had seen a signed complaint over Bowker's hand. Bowker's position was that she had not made a complaint at all, but had been a witness to Coombe's complaint. According to Bowker, Johnston said, "It's still lagging" and, at another stage, "It's fucking lagging." There was arguing to and fro as to why Bowker was not being supported in this instance, when she was supported on a previous occasion when she had had cause to make a complaint. Bowker said that she was defending Coombe and (in her evidence), "I was trying to make them understand the ramifications of what it is to be a victim of this sort of behaviour." But "that didn't seem to enter in any of it." According to Bowker, Johnston's concern was "more about you just don't go upstairs and make complaints. You just don't involve management. [T]hey handle these things in-house. They do it themselves." Bowker said that they agreed to approach management on the morning of 8 August, with a view to clarifying whether they (management) were holding a complaint signed by her. It may be noted that this purpose of meeting with management was not mentioned by Johnston in his evidence, but it makes sense since, on any view, he and Bowker were in heated disagreement over this question. 38 As it happened, there was no meeting of present relevance at 9 am on 8 August 2013. In his evidence-in-chief, Schleibs suggested that he had telephoned Pastro on the night of 6 August 2013 to arrange the meeting, but, under cross-examination, it became clear that Schleibs had no useful recollection of the actual timing of this call. Pastro could not recall any such phone call from Schleibs on the night of 6 August 2013, and was not cross-examined on the matter. She said that she did receive a call from Schleibs at about 10 am on 8 August 2013, and, because of Pastro's more reliable recollection on the matter of timing, I would find on the probabilities that that was when Schleibs called her. I shall refer to the detail of that conversation presently. 39 In the meantime, shortly after Bowker had commenced work on 8 August 2013, she received a call from Buttress, asking, "what's happening to this 9 o'clock meeting?" Bowker, who was the only one to give evidence of this conversation, did not say whether, or how, she responded to that inquiry, but any concerns she may have had about the 9 am meeting not being held were promptly overtaken by what Buttress said next. According to Bowker, he said, "Everybody is going crazy. This workplace has erupted. I've been defending you all morning. You've been called a lagger …. Mark's story has got out. We've got to get this meeting, go to get it sorted." It is evident from this that Buttress was concerned that, before the meeting could be held with management to resolve the question whether Bowker had in fact lodged a complaint, Johnston's version of the facts had "got out". Bowker said that she had not heard anything from anyone (ie about the arrangements for the meeting with management). Buttress said that he would find Johnston, and find out what was going on. 40 I pause here to make a finding on the probabilities that will have some relevance later. From what Buttress had told Bowker as set out in the previous paragraph, the latter jumped to the conclusion that Johnston had been putting it about in the workplace that she was a "lagger". She later withdrew from that position, and apologised to Johnston for having accused him of that. On the evidence, the only other way that Johnston's "story" would have found its way into general circulation would have been because at least some of the employees in the amenities room who were present when Johnston was upbraiding Bowker heard what he was saying. Walmsley did not, but he was some distance away. But Bowker's evidence that the room was "pretty full", and that there were "a lot of people milling around" was not challenged. Although I would not find that Johnston was speaking in a raised voice at the time, Bowker's evidence, which I accept in preference to that of Johnston and Walmsley, is that Johnston was speaking in a direct and angry way. He made no attempt to make a private conversation of this exchange. I regard it as most probable that the essence of Johnston's accusation, including specifically that Bowker was a "lagger" was heard by at least a number of the other stevedores in the room. There is no basis upon which Johnston might have assumed that it would be otherwise. 41 Returning to the narrative, Buttress did contact Johnston. The only evidence which Johnston gave on the subject came out, apparently incidentally, during cross-examination. He said that he had, on 8 August 2013, asked Buttress to arrange the meeting which had been discussed on the night of 6 August. Although the subject was not substantially taken further by counsel for the respondent, it strikes me as curious that Johnston would have thought it necessary to ask Buttress to arrange the meeting, since Buttress had been party to the understanding on the night of 6 August 2013. Bowker, however, gave evidence on this point which has a much stronger ring of credibility about it. She said that Buttress called her back, and said that he had found Johnston, who had told him not to worry about the meeting. The meeting did not have to go ahead because Schleibs had "sorted it out". It had "all been fixed up". Bowker said to Buttress, "That doesn't seem quite right. We're both supposed to be going up together to verify this document." She said that she would ring Schleibs to find out what was going on. 42 Bowker did ring Schleibs. According to her evidence, he said that Johnston had made a commitment to her, and that they were both supposed to go upstairs and get this sorted out. Bowker mentioned to him that Johnston had, from what she knew, just said to Buttress that he, Schleibs, had sorted it all out, and there did not need to be a meeting. Schleibs said that that was not right. He said that he would call Pastro and sort out a meeting for both of them because, "that's a commitment that Mark has made to you". Bowker accepted that, but, as she was about to end this call, she said, "Dave, you do know your mate is lying to you, don't you?" Schleibs' response was, "No, no, mate, no, no, it's all good, it's all good." Schleibs himself did not give any evidence about this conversation, either in chief, or, regrettably, under cross-examination. 43 Schleibs did call Pastro. That was the conversation to which I have referred at para 30 above. According to Schleibs, (as he clarified his evidence in re-examination) he told Pastro that Bowker wanted "to view the statement and make any edit if necessary". Pastro did not respond well to that request. Schleibs recalls that she said, "Look, I'll email the statement to her. I've got it here. I'll email it to her. She's welcome to make any changes she likes and give it back to me, but I'm not having another meeting to discuss this issue." According to Pastro, when Schleibs rang her he said that Bowker wanted to change her statement. While she accepted that the general thrust of her response was as stated by Schleibs, her own recollection was that she had said to him (speaking of Bowker), "Well, if she thinks that I've got it wrong, she can write a statement so it's all correct and then I will go from there." On the point of difference between Schleibs and Pastro referred to in this paragraph, I prefer Pastro's evidence, and find that Schleibs did tell her that Bowker wanted to change her statement. 44 Schleibs then rang Bowker back. According to Bowker's evidence, Schleibs said that he had spoken to Pastro, and continued, "She doesn't want to see you, mate. She's a little bit disappointed in you. She doesn't want to get involved in the issues between you and Mark and if you've got any changes that you want to make in relation to your statement, you need to do it by email." Bowker's response to that was, "What? Who discussed that I would make any changes to my statement? That's not what the agreement was. I had been confronted with the fact that I made a formal complaint, and who said that I was doing that? I've never said that I was going to change it." Schleibs denied that his discussion with Bowker was based on the premise that he had told Pastro that she, Bowker, wanted to change her statement. On this point, I prefer Bowker's evidence, and accept that her conversation with Schleibs was substantially as set out in this paragraph. 45 Bowker then arranged for another of the foremen to give her a lift back to the main terminal. She was intending to proceed to the management offices, but en route she received a call from Buttress, who had been contacted by Schleibs and told that Bowker had "flipped", as he (Buttress) put it. Bowker said, "I can't believe it. I'm being set up." Buttress persuaded Bowker not to go upstairs "all upset", but to meet him in the old foremen's room where the meeting on the evening of 6 August had been held. Bowker did as she was bid by Buttress. She was crying. Buttress said that she could not go upstairs looking as she was, to which her response was, "well, I am". And, as she put it in her evidence, she "walked off on him". 46 Bowker proceeded to the main terminal office, where the only person that was available was Jotic. She went into his office and, as she put it in her evidence, "proceeded to cry and yell and tell him what was going on." Jotic knew nothing of the phone conversation between Schleibs and Pastro, and attempted to contact the latter. "Eventually", as Bowker put it, Pastro arrived, with a stern look on her face as she saw Bowker. It is evident that Pastro's stern look was based on her supposition, derived from her earlier conversation with Schleibs, that Bowker wanted to change her statement. Pastro commenced to say something to Bowker, but Bowker talked over the top of her, saying, "It's not true. I'm not retracting anything I said in that meeting. It's not true. It's not true." 47 Pastro's evidence about this occasion in Jotic's office was that Bowker was extremely upset and angry. She recalled that Bowker had expressed anger about Schleibs having said that she wanted to change her statement, which was untrue. Bowker told her that they were playing "funny buggers in regards to what was being said", and she was feeling a little ostracised. Bowker then told Pastro that she had been approached by Johnston in the mess room (as Pastro described it in her evidence), and that he had said to her that she had better "lawyer up", and that the Union was not going to represent her; and that Johnston "proceeded to called her an effing lagger." At some stage hereabouts, Coombe arrived. She too was upset with what was going on, saying that people had got it wrong, that she, not Bowker, had made the complaint. As perceived by Pastro, Coombe was angry about what had happened as well. 48 At this point, Pastro formed the view that it was necessary to bring Schleibs into the office to meet with herself, Jotic, Bowker and Coombe, so they could "sort it out", as Pastro put it in her evidence. Such a meeting was held, commencing at about 1:30 pm on 8 August 2013. No notes were taken of what was said at this meeting, and no two versions of it as given in evidence were in complete alignment. The meeting was held in the board room, adjacent to the office of the respondent's General Manager at the terminal, Andrew Jena. 49 In the controversies in the present case, this meeting in the board room has assumed some significance. At some point, in circumstances to which I shall refer, Johnston was invited to be present, and he did attend. He could not stay for long, and departed while the meeting was still in progress. It seems that he was present for about 20 minutes. Accordingly, the meeting was divided into three parts: before Johnston arrived, while he was present, and after he left. From the evidence that was given by those present, it is not always clear whether some interchanges occurred in the first or third parts. Nothing turns on that. For the most part, those aspects of the interchanges which occurred while Johnston was present identify themselves by the references to his involvement. 50 On any view, the first subject of discussion at the meeting was the question whether Schleibs had told Pastro that Bowker wanted to change her statement. It had been, after all, Bowker's representation to Pastro on that subject that had led to the convening of the meeting. How that subject was introduced was not a matter of complete consensus in the evidence of those concerned, however. That is not surprising, since this was an occasion when emotions were running high. At such times, people tend to recall what others have said better than they recall what they said themselves. What seems unmistakeable, however, is that Schleibs was very much on the defensive at the start of the meeting. 51 According to Bowker's recollection, she, Coombe, Pastro and Jotic were in the boardroom before Schleibs arrived. When he did arrive, he sat directly across from Bowker. Before he sat down, Pastro looked at him and said, "You lied to me." Schleibs' response was, "No, mate. No. Oh, mate." Pastro rejoined, "No. No. You lied to me." According to Bowker, Pastro was quite angry, but Schleibs held to his position, saying, "No, mate. No, I didn't." At this point, Bowker herself said, "Yes, you did. Yes, you did. You rang her up and you told her that I wanted to change my statement." Although less elaborate, Coombe's evidence was to substantially the same effect. Pastro too said that the meeting commenced on that subject, but she recalls that it was Bowker who first said something about it. She recalls that Bowker said to Schleibs, "You told Sheryl I wanted to change my statement, but I didn't." Schleibs' response was "I think we've got our wires crossed." Schleibs recollection was that Pastro had said to him, "Dave, you told me that Sharon wants to change her statement but Sharon said that she didn't." He also accepted that his response was to say to Pastro, "I think we've got our wires crossed." He put it in those terms to save any embarrassment to Bowker since, when he previously spoke to Pastro, he understood himself to be acting in accordance with Bowker's wish to view the statement which she had provided. As I have found, however, Schleibs had in fact previously told Pastro, or at least given her to believe, that Bowker wanted to change her statement. Although Schleibs did say to Pastro, in this meeting, that they had their wires crossed, the crossing of the wires was, I would find, to be explained wholly by Schleibs having conveyed to Pastro a message which he had not been given by Bowker: that she wanted to change her statement. 52 The meeting then moved to Bowker's accusation against Johnston. According to Pastro's evidence, Bowker said to Schleibs that Johnston had called her a lagger in front of everyone in the amenities room, and that she was really angry about the way it had been treated, in that it was spread around that she had put in a complaint when she had not done so, she had only made a statement. Bowker gave evidence to substantially the same effect, as did Coombe. Schleibs' evidence-in-chief was not organised to convey a sequential narrative of the exchanges in this meeting, but, under cross-examination, he did accept that, upon his arrival, Bowker "got stuck into" him; that she told him that she was unhappy about his having told Pastro that she (Bowker) wanted to change her statement; that Bowker made it very clear to everybody at the meeting that she did not want to change the statement she had given about Bennier; and that there was discussion prior to Johnston's arrival about what occurred between him and Bowker in the amenities room on 6 August. It was probably after some exchanges on the subject of what Johnston had said to Bowker in the amenities room on 6 August 2013 that it was suggested that Johnston should be given the opportunity to defend himself. So Schleibs contacted him and invited him to attend. 53 Johnston arrived at about 2 pm. There were two main subjects discussed in his presence. The witnesses were not entirely consistent in their recollections of the order in which these subjects were reached, and Johnston and Schleibs denied that one of them was discussed at all. For reasons which follow, I reject those denials. The evidence of both of these witnesses, at least in chief, tended to focus upon the bad language which, they said, came forth from Bowker. That focus was, I consider, a smokescreen for the issues of substance that were under discussion, and which must now be considered. The order in which I set things out below is what, from context, I believe would reflect, most probably, the course which the discussion followed. Nothing turns, however, on the particular order in which various matters were discussed. 54 To respond to Bowker's accusation that he had called her a "fucking lagger" was the reason that Johnston was invited to the meeting. Upon his arrival, Bowker confronted him with that accusation. Johnston agreed with what his own counsel put to him in chief, that, at this meeting, Bowker said to him, "You called me a lagger, you swore at me and humiliated me in front of all these people." In Bowker's evidence, she said that she had put it to Johnston that he had called her a fucking lagger, told her that she needed to get a solicitor, and told her that she would not be represented by the Union. She said that Johnston's response was to shrug his shoulders and to make a particular kind of face which she demonstrated to the court, but she did not understand what Johnston meant by these gestures. Bowker held to that evidence under cross-examination, insofar as it related to Johnston's direct response to her accusation that he had called her a fucking lagger. However, while not "exactly at that point" of the discussion, Bowker recalled that Johnston had said, "I've never called you a lagger". According to Bowker, it was then that Jotic and Pastro interjected. Jotic said, "Well, you called her a 'lagger' to me." Pastro also said, "You called her a 'lagger' to me." Coombe recalled this exchange too, although in slightly different terms. She said that, at the stage when they were discussing Johnston's comment to Bowker in the amenities room, Johnston said that he had not called her a lagger. Pastro's response to this was to say, "You called Sharon a lagger in a meeting with us." Jotic nodded his head and said, "Yes, you did". Bowker's response was to say, "What?" It was the first that she had heard of that. The occasion, if there were one, upon which Johnston described Bowker as a lagger in conversation with Jotic and Pastro was not revealed in the evidence. 55 According to Johnston, he accepted Schleibs' invitation to be present at the meeting because he understood that he was being accused of having circulated the rumours about Bowker being a "lagger", and he wanted to clear the air. While he was there, the accusations that he was spreading the rumours were the only matters discussed at the meeting. It was Bowker who was accusing him of spreading the rumours. Johnston's response was that never in his time of being a delegate or of being in meetings had he "come out of meetings and talked about what [had] gone on in [those] meetings". He denied in his "strongest terms" that he was spreading rumours about Bowker. He said that he was not the only one in the initial meeting on 6 August that was in the room, "so how dare she accuse me of spreading rumours". Bowker accused him of having called her a fucking lagger in the amenities room two days earlier, and he (as he put it in his evidence) "would have said no, no, no, a hundred times". 56 In Pastro's recollection, Bowker accused Johnston of having told her to lawyer up, that the Union was not going to support her, and that she was, as Pastro put it in her evidence, "an effing lagger". In her evidence-in-chief, Pastro said that Johnston's response was "Yes, I called you a lagger." Under cross-examination, however, Pastro accepted that Johnston may have denied that he had called Bowker a lagger, while admitting that he had told her that what she had done was lagging. 57 One way or another, the discussion shifted to the subject of whether Bowker had signed a written statement of complaint against Bennier. Johnston and Schleibs denied that this subject was canvassed at all, but their evidence was not credible. Whether Bowker had signed such a statement was, of course, the great uncertainty that had been discussed on the evening of 6 August with Buttress, and which was to have been clarified at the meeting at 9 am on 8 August which was never held. Now that the protagonists were finally together in a meeting with Pastro and Jotic, the evidence from Bowker, Coombe and Pastro that this subject was broached, rather than ignored as Johnston and Schleibs would have the court believe, has a very strong ring of truth to it. 58 According to Pastro, Bowker made it clear to Johnston that she had not made the complaint, but that she was supporting Coombe. She said that Johnston had got that wrong. Johnston said that he had seen the complaint, and that Pastro had shown him the complaint by Bowker. Bowker's own evidence on this part of the meeting was that Johnston said to her, "You've made a formal complaint. I've read it word for word." At this point, Coombe intervened, saying to Johnston, "Mark, I need to make it very clear to you I am the one that has made the complaint. I have made the complaint and Sharon has been a witness to my complaint. Do you understand?" Johnston's response was, "Well, I saw what I saw". According to Bowker, either she or Pastro then asked Johnston, "Well, what did you see?" His response was, "I saw a statement". In giving this evidence, Bowker noted that Johnston had shifted his ground, in the sense that previously he had claimed to have seen a "complaint". However, that minor point of distinction may be, Pastro then became "quite angry", picked up a pad and said to Johnston, "I just showed you my handwritten notes. That's all I had was my handwritten notes." Coombe's evidence was to the same effect, and Pastro too said that, in response to Johnston's insistence that he had seen a statement by Bowker, she held up, for Johnston to see, her own written notes of her interview with Bowker. Johnston said that he had thought that those notes were Bowker's complaint. 59 In the recollection of Bowker and Coombe, it was at about this point in the meeting - when Johnston realised that the note, which had been in Pastro's possession on 6 August 2013, was not a statement by Bowker - that he admitted having advised Bennier to deny making the offensive comment about Templar and Coombe. Bowker said in her evidence that Johnston made a comment that Pastro was very angry during the meeting with Bennier on 6 August 2013. (I note that, in Bowker's evidence, no distinction was made between the two such meetings.) He said to Pastro, "You were really angry. I knew that you were going to sack him. I can read between the lines and I advised Stewart Bennier to lie." When asked (in chief) what was Pastro's reaction to this revelation, Bowker's answer was - and I do not put this disparagingly - theatrical. The only word shown in the transcript to describe that reaction was "Oh". Bowker's evidence was that "everybody just went Oh". This was, however, an "Oh my goodness!" kind of "Oh", not an "Oh alright" kind of "Oh". Counsel agreed that I should describe the way that Bowker gave this evidence as involving a number of gasping intakes of breath. Pastro then said, "What? You've advised someone to lie? Against these girls. These are also MUA members. You've advised someone to lie and make these girls look like liars." 60 Coombe's evidence was that, when Pastro told Johnston that all he had seen were her handwritten notes, his response was "We can all read between the lines. I knew by the look on your face that Stewart was going to get the sack. I knew Stewart lied and I told Stewart to lie." Coombe said that they were all shocked by that revelation. Bowker "just had her mouth open". Pastro said, "What? Why aren't you - today - why aren't you supporting these two women? Why aren't you supporting these two women? You're a White Ribbon Ambassador. You should be supporting these two women." 61 As to Pastro, in response to an open question in chief which inquired whether there were any other topics discussed in Johnston's presence, Pastro said, "Yes. Sharon also discussed the fact that in - when Mark was supporting Stewart Bennier with the meeting that, you know, everyone knew that Stewart was, say, a little simple, and that - you know, he then proceeded to tell him to lie." When asked how Johnston responded to this, Pastro said that he said, "Yes, I did. What did you expect? It was against a supervisor." 62 Both Schleibs and Johnston denied that the latter had admitted, at this meeting on 8 August 2013, that he had advised Bennier to lie on 6 August. Johnston said that he said nothing about Bennier in the meeting. He specifically denied the evidence that was to be given by Bowker that he said, "I can read between the lines. I know that Stewart Bennier did it but I told him to lie and make a false statement. I can read between the lines." And he specifically denied the evidence that was to be given by Pastro that he said, "I got him to deny it. What was I supposed to do? This was against a supervisor." Schleibs too said that the matter of Bennier was not discussed, and that Johnston did not admit that he had told Bennier to lie. 63 Apart from the large question whether Johnston admitted that he advised Bennier to lie, there is a smaller question which should be first addressed in relation to this aspect of the meeting on 8 August. As noted above, it was Pastro's recollection that it was Bowker who put it to Johnston that he had told Bennier to lie. Bowker, however, said that, when she went into the meeting, she had no idea that Johnston might have advised Bennier to lie, and that she was shocked when she heard what he said. When cross-examined on the subject, she stated that she remembered this aspect of the meeting "vividly", and her presentation in the witness box, and the manner of the giving of this evidence, leaves me in no doubt as to the reliability of her recollection. There is no suggestion in the evidence of any earlier occasion upon which Bowker would have learnt that Johnston had advised Bennier to make his false denial. No witness said that the subject had been broached in the long meeting with Buttress on the evening of 6 August, and Bowker had not had contact with Johnston between then and the meeting on 8 August. On this point, therefore, I accept Bowker's evidence in preference to Pastro's. Nothing, however, turns on this minor difference in evidence. Whether the evidence of both of these women, and of Coombe, that Johnston did admit that he advised Bennier to lie should be accepted in preference to that of Johnston himself and of Schleibs is a matter to which I shall return. 64 After Johnston had left, the meeting continued for some time. In Bowker's recollection, she and Coombe went over the ramifications for people in the workplace being subjected to bullying and harassment, particularly in the context of what Coombe had been through. Coombe referred to her history with Schleibs, she having been a delegate of the Union in the past, at which time she regarded him as a kind of mentor. She said to him, "You know, Dave, I had to do this. I've spoken to you about it. You've tried to fix it. You haven't been able to fix it. I've had to put in a complaint." Schleibs did not agree that making a complaint to management was the right way to address this issue. Probably at about this stage, Coombe, or possibly Pastro, raised the question of the Union's role - why was it representing Bennier, but not herself. Schleibs' response, referring to Coombe, was "You've made the complaint, you're not the one in trouble. The person the complaint is about is the one that's in trouble and we need to protect the person in trouble." Then Bowker mentioned a previous occasion when she herself had made a complaint over an issue in the workplace, at which time (and here I quote her evidence), "I could not speak any higher about how Dave Schleibs managed me, how he looked after me and how he supported me and my family." She wanted to know why Schleibs supported her then, but was not now supporting Coombe. According to Bowker, Schleibs' response was, "But that was different. That was girl on girl, and in this case, there is a man involved and we will support the man." Bowker rejoined, "I can't believe you said that." 65 Although not necessarily placing this exchange in the same part of the meeting as Bowker did, Coombe's evidence was to substantially the same effect. In her recollection, Bowker mentioned a previous occasion when she had been the complainant and the Union represented her, to which Schleibs' response was that that was different because it was "woman on woman", whereas the Bennier matter was "man on woman and I will represent the man." In his evidence, Schleibs denied having said that. His evidence was that either Coombe or Bowker asked him why the Union was not representing them. Schleibs said that his comment was "that they don't need representation because they haven't been accused or charged with anything, that I would be representing the person that had been charged with something." He denied having said, "that's different because that's woman on woman and this time it's woman on man". 66 The conversation at this meeting was probably at its most robust at one of the points when Bowker complained that Johnston had called her a lagger and that everybody in the workplace was calling her a lagger. It is tolerably clear that the exchange to which I am about to refer occurred when Johnston was absent, but there is some doubt as to whether it occurred before he arrived or after he departed. In response to Bowker's vehemently-expressed objections to having been called a "lagger", Schleibs said, "It's just a word. It's lagger. It's no big deal. You're overreacting." Bowker "vividly" remembers then saying to Schleibs, "Well, the word 'cunt' gets thrown around a lot these days and I'm sitting here in front of you telling you you're a fucking cunt." Schleibs' response was, "Take it easy." Then Bowker said, with reference to Coombe, "And by the way, she's a slut." Coombe joined in with a comment along the same lines. Bowker pointed to Schleibs and said, "Don't you sit there and tell me that 'lagger' is just a word. With the ramifications that that has in this workplace, with an inmate mentality, it is more than just a word." Coombe said it was not just a word for her, and proceeded to stress the impact of the use of such a word on top of the behaviours which she had experienced in the workplace. She said, "They're no longer just words. They are affecting me. They are not only affecting me, the behaviours are affecting other people, other families. They [have] affected Stephen Templar. They have affected Sharon now. It needs to stop." 67 Save for his summary of what was, in effect, resolved at the end of this meeting, Jotic's recall of what had been said on 8 August 2013 was very limited. To the extent that he was able to recall the meeting, his evidence was, as I heard it, very much a matter of broad impression rather than of actual recollection as to who said what. Jotic's summary was, however, more comprehensive, and valuable, than that provided by any other witness. He said in chief that there were six matters agreed at the end of the meeting: The first was that Stewart Bennier was to issue an apology to Stephen Templar and Annette Coombe. The second was that Stewart Bennier was to attend a meeting with management at a subsequent time. The third was that the Union and DP World would promote the White Ribbon Campaign for violence against women. The fourth point was that there would be further training on bullying and harassment rolled out to the senior foreman - the charge foreman, including Mr Schleibs, some time in September, I believe it was. There was an agreement that each of the employer representative committee delegates would approach their work groups to discuss the issue of bullying and harassment. And also the last point was a joint statement to be issued between the Union and the company on abuse or how to be - how to deal with abuse, which took the form of a toolbox that we issued on the company's bullying and harassment policy. Schleibs denied that the first, third and fifth of these matters was agreed on 8 August, and adhered to that under cross-examination. Jotic too adhered to what he had said under cross-examination, and in re-examination counsel for the respondent tendered Jotic's handwritten note of the outcome of the meeting, without discussion or elaboration. As I read it, this note does not always line up with Jotic's evidence-in-chief, but, to the extent of confirming a consensus that Bennier would apologise to Templar and Coombe, it does. The first and second of these matters were also confirmed in the evidence of Pastro. I accept the evidence of Jotic and Pastro, at least to the extent that, by the end of the meeting on 8 August 2013, they proposed to require Bennier to apologise to Templar and Coombe. 68 At about 7 pm on the same day, 8 August 2013, Bowker telephoned Johnston. She mentioned the rumours which, she believed, were circulating about her on the afternoon shift, that is, that she was a "lagger". She wanted to make clear to Johnston that her accusation that he was responsible for rumours of that kind could not apply to the rumours then circulating because, she realised, Johnston himself was not at work on the afternoon shift. She said, "I'm sorry, I know that you're not responsible for the rumours in the afternoon shift". According to Johnston, this telephone call went for much longer than would be necessary for Bowker to have passed on this message, but I have not been able to see anything else that requires mention in these reasons. 69 I mention next something that was put to Bowker in cross-examination. It was put that, in the days following Bennier's interview with Pastro and Jotic on 6 August 2013, she (Bowker) telephoned him (Bennier), and she agreed that she had done so, volunteering the additional information that she had done so twice, on Saturday, 10 August and on Monday, 12 August. In what I take to be the first of those conversations, Bowker told Bennier that she had confirmed with management what he had done, but that she had not made the complaint as such. She also told him that Johnston had told the respondent that he (Bennier) had lied to Pastro and Jotic. As Bowker put it in her evidence, there was "no way out" for Bennier. If he did not "come clean about what he had done", he would undoubtedly lose his job. Bowker advised Bennier that his only option was to tell the truth. Bennier's own position, as conveyed to Bowker in this telephone conversation, was summarised by Bowker in her evidence as follows: I actually had to convince Stewart Bennier that Mark Johnston had actually told management that he advised him to lie. Stewart Bennier didn't believe me that Mark Johnston would have done that. I had to convince him because Stewart Bennier, at that point, was so convinced that he was going to be sacked if he told the truth that he didn't know what to do. So he was torn. He was getting advice from his delegate saying, "Don't tell the truth, stick to the story," and then I'm telling him, "Well, he has told management that you've lied. You've got to tell the truth. You've got to tell the truth." 70 Bennier accepted that Bowker had telephoned him (in fact, encouraged by one of their workmates, Bennier had reluctantly agreed to return Bowker's call). Bennier did not recall nearly as much of that conversation as Bowker claimed to have done, but he did recall that he told her that he "had to go up and tell the truth" and that it was "eating away" at him. He recalled that she told him that he had to "come clean" and to "tell them exactly what happened". He also recalled that Bowker told him that, in a meeting with Gary Ellis, the Operations Manager at the terminal, Jotic and perhaps others (whom he could not recall) "the Union went around and told the company we sort of encouraged him to lie" (Bennier's words in his evidence). 71 The matters covered in the two previous paragraphs were raised in the cross-examination of Bowker and Bennier with a view to having them accept that, in the conversation referred to, Bowker had suggested to Bennier that he should tell the respondent that Johnston had advised him to lie. Bowker denied that she did so, and Bennier could not recall any such suggestion having been part of the conversation. The significance of the conversation, however, is that it provides some, albeit indirect, confirmation of the respondent's case that Johnston stated, in the meeting on 8 August 2013, that he had advised Bennier to deny having made the comment which he had made. 72 On the day following the conversation just referred to, Sunday 11 August 2013, Johnston's work involved him driving the bus which ferried employees to and from various parts of the terminal. According to him, at about 10 am he received a call from Bennier, who sounded "a bit agitated". Using the speaker phone, Johnston listened to what Bennier had to say. He said that he had just spoken to Bowker and, in Johnston's words, "he [had] told a lie and it was affecting his home life and … he needed to tell the truth". Johnston's response to Bennier was, "Stewart, you've made a fool of me and I don't want anything else to do with the matter and you're best off contacting the Maritime Union, specifically Dave Schleibs." 73 It was Johnston's evidence that Walmsley was on the bus at this time, and heard the conversation on the speaker phone. Walmsley also gave evidence to that effect. I will not set out what he claims to have heard in the conversation, since I reject his evidence, and Johnston's evidence, that he (Walmsley) was present on this occasion. When Walmsley was under cross-examination, it was put to him, and he accepted, that he was on sick leave on 11 August 2013. The applicants do not now submit that Walmsley was at work that day, but they submit, in effect, that the conversation might not have occurred on that very day: it might have occurred on another day thereabouts. That submission must be rejected. In his evidence, Johnston was quite clear that the day when Bennier rang him was a Sunday. From the other evidence in the case, it could only have been 11 August 2013. Whatever was the purpose of Walmsley's evidence on this relatively minor aspect of the case, I am obliged to find that it was concocted. 74 But I do accept Johnston's evidence that Benner telephoned him on 11 August 2013. Bennier accepted that he had telephoned Johnston in this period, although he denied that Johnston said that he had made a fool of him. According to Bennier, he asked Johnston whether, in a meeting with management, he had admitted that he (Johnston) had encouraged him (Bennier) to lie at the meeting with Pastro and Jotic. Johnston said that he had not done so. 75 On 13 August 2013, Pastro, Ellis and Jotic met with Bennier and Schleibs. Shortly before the meeting, Bennier had been advised by Schleibs to tell the management representatives that they should "throw out" everything that he had previously told them in response to Coombe's allegation, and "start from scratch", that is, as I would understand it, tell them exactly what had happened in the lead-up to, and in, the exchange he had with Madigan in the amenities room on 18 July 2013. In the meeting, that is the course that Bennier followed: he confessed to having made the comment about Templar and Coombe referred to earlier in these reasons. He was issued with a final warning in respect of that. He agreed to apologise to Coombe, Templar and Bowker. He also told the management representatives that, before the meeting with Pastro and Jotic on 6 August, his union delegate had told him to deny having made the comment. Although Bennier did not mention Johnston by name, he knew that Pastro and Jotic were well aware that Johnston was the delegate referred to - as they were. 76 Bennier apologized to Templar on 23 August 2013. Although the making of that apology is in itself uncontroversial, for reasons which will appear in due course it is necessary (and, for the sake of the narrative, it is convenient) to set out a passage in an email of that date from Templar to Ellis. Templar said that he had had a meeting with Bennier in Jotic's office, and continued: In this meeting Stuart has apologised for what he has said and he is very sorry for what has transpired. Before leaving the meeting, I asked Stuart two questions (1) Why did he associate me with Annete [sic], he stated because of recent rumours which indicates someone out there is still spreading rumours. And (2) who came up to him prior to meeting with management and told him to lie and deny everything like had [sic] and they cannot do anything to you he stated Peter Whelan. 77 Bennier recalled the meeting in Jotic's office, and accepted that he had then apologised to Templar. But he denied that Templar had asked him who came up to him before his meeting with management, and told him to lie and to deny everything. He accepted counsel's proposition that he was suggesting that Templar had made up that part of the email. Jotic, who was present at the time, said in his evidence-in-chief that the question put to Bennier by Templar was, where did he (Bennier) hear the rumours regarding the alleged affair between Coombe and himself (Templar)? According to Jotic, Bennier's answer was Whelan. Jotic said that there was no other respect in which Whelan's name came up during that meeting. He was cross-examined briefly on this subject, but was not challenged on his evidence-in-chief referred to in this paragraph. 78 Bennier apologised to Coombe and Bowker on 29 August 2013. This was done at a meeting in the conference room at the terminal attended by those three, and by Ellis, Jotic and Kate Connellan, the Assistant Human Resources Manager at the terminal. After the apology, there was an interchange between Coombe and Bennier, in the course of which Coombe asked whether Whelan had been the source of the rumour in the workplace about Templar and herself. As recorded in the file note, Bennier's response was: Said he had not heard Peter say anything bad about her, but said he had empathised with Peter when they broke up and the effect it had on children and that Peter had thanked him and agreed it was difficult where children are involved. Said when Peter had found out about the comment Stewart had made about Annette he had advised him to deny he said it. "Peter", of course, was Whelan. 79 Under cross-examination, Bowker was asked to read Connellan's file note, and was then asked whether the document was "an accurate record of the apology given by Mr Bennier and the discussion about that matter". She answered, "I believe that that looks fairly accurate, yes." Her attention was not specifically drawn to the two lines which recorded that Bennier had said that it was Whelan who advised him to deny making the comment about Templar and Coombe; and she was not otherwise asked whether Bennier had made such a statement in the meeting. By contrast, Coombe was taken through Connellan's note of what had been said at the meeting line-by-line. When her attention was directed specifically to the two critical lines, she said that she could not recall such a statement by Bennier. 80 In chief, Jotic said that he did not recall any mention of Whelan at the meeting of 29 August 2013. However, during cross-examination he was shown Connellan's file note, which he did not "directly" recall having seen previously. Having had his recollection of the meeting refreshed by reference to the note, and having had his attention drawn specifically to what I have described as the two critical lines, he said that he believed that the notes were accurate, continuing, with reference to the matters attributed to Bennier in the notes, "so, yes, I would suggest they were said at the meeting." 81 In cross-examination, Bennier was taken to the contents of the file note in detail, and then shown the note to refresh his memory. On each occasion he denied that he had said, at the meeting on 29 August 2013, that it was Whelan who had advised him to deny having made the comment about Templar and Coombe. 82 It is next necessary to return to the days immediately following 6 August 2013, and to the situation in which Coombe and Bowker then found themselves. Regardless of the identity of the person or persons responsible, it became common knowledge in the workplace that Coombe had complained to management about Bennier's comment regarding Templar and herself, and that Bowker had supported that complaint with a statement of evidence. In the result, both women found themselves ostracised by their workmates and, in the case of Coombe, the behaviours to which she had been subjected for some time worsened. Evidently, the meeting on 8 August 2013 led to no improvement in this situation, for either of them. As a result, Coombe and Bowker were granted special leave from work, commencing on 10 August 2013. 83 Then, on 15 August 2013, Coombe and Bowker took it upon themselves to travel to Sydney and to arrive, unannounced, at the corporate head office, of the respondent's ultimate parent company, DP World Australia Limited ("the national company"). They asked to see the Chief Executive Officer, Ganesh Raj. In her evidence, Coombe stated her own reasons for taking this unusual step as follows: I went to Sydney because I didn't feel supported by the Union. I didn't feel I had the support of the company, either, and I didn't know who to trust. Generally, what had happened when people … make a noise or a complaint, when it was related to something like bullying [or] harassment, … they would usually leave the company. They … would resign or they would end up on WorkCover and they would exit the company, and I didn't want to be another one of those people. I loved my job. I love my job, and, you know, … I don't want to be another one of those people … who leaves the company because things are too hard to deal with. Coombe and Bowker did secure an audience with Raj, and they explained to him the serious situation which they faced at the terminal. Raj brought the Human Resources Director of the national company, Craig Thomson, into the conversation and, after a brief conversation in four, Thomson took the two women to his own office where he listened to their complaints in greater detail. A note which Thomson later prepared of his meeting indicated that it commenced at 9:15 am on 15 August 2013. In the course of the meeting, Thomson asked Coombe to send him a copy of her complaint of 31 July 2013, and she did so as an email from her mobile phone at 12:26 pm that day. It is a reasonable inference - and not inconsistent with the witnesses' recollections - that the meeting had concluded by then. 84 The court's task of piecing together what happened next is made the more difficult by the respondent's decision not to call Thomson, but the following seems to be tolerably clear. During the meeting with Coombe and Bowker, Thomson was taking notes. After the meeting - whether in the days or weeks following does not appear - Thomson sent Coombe a copy of his notes for review by her. She did review the notes, "updating" them in some respects. She also sent her own statement, with dates, of other incidents which had affected her in the workplace in the period October - December 2011, and which she had, at the meeting on 15 August, agreed to prepare. 85 There is no evidence of when Thomson first prepared the note that he sent to Coombe for review, or of the terms of the note in its original form, since the note as tendered in evidence was in its post-review form, as attached to an email of 12 September 2013 from Thomson to Coombe, with a copy to Pastro. In that email, Thomson commenced by thanking Coombe for "reviewing and updating the statement and for providing additional information regarding previous incidents". He apologized for not sending the statement to her earlier, adding that he had been on leave the previous week. 86 Turning from Thomson's communications with Coombe and Bowker to his communications with the respondent's management in Melbourne, on the day of his discussion with these women - 15 August 2013 - Thomson spoke to Jena after a board meeting in Sydney. He said that there were two women (mentioning them by name) from the Melbourne terminal who had come to the head office and lodged a complaint about a serious issue of bullying and harassment at the terminal. He said he (Thomson) would work with the local human resources section in Melbourne to appoint an investigator to conduct some interviews, to get to the bottom of what was going on. Jena understood from Thomson that there had been some conversations at the terminal which involved aggressive behaviour towards one of the women, that an email complaint had been lodged by one of them, and that there was now a formal complaint which needed to be investigated. Thomson told Jena that he did not have to get involved at that stage, and Jena said that he was happy for him (Thomson) to proceed with appointing an appropriate investigator. 87 Also on that day, Thomson rang Pastro. He told her about the visit of Coombe and Bowker to the respondent's Sydney office. He said that they had spoken to Raj and himself, and provided a brief summary of the concerns which they had raised. Thomson said that he would forward his notes of that meeting to Pastro. 88 On the day after Jena's return from Sydney, he asked Pastro about the bullying and harassment allegations that had been mentioned to him by Thomson. She informed him that one of the allegations was that Bowker had been called a "fucking lagger" by Johnston. She said that she had been in touch with Thomson, and was (in Jena's words) "in the process of investigating that and holding meetings". Jena was not aware of any allegation that Bowker was being called a lagger in the workplace, or that Johnston had told another employee to lie. From that point until about November 2013, Jena knew little about the progress of the investigations that Pastro was overseeing: in his words, he was "a bit hands-off on that issue". 89 The receipt, on 12 September 2013, of a copy of Thomson's email to Coombe attaching his notes, by now reviewed by her, of his meeting with Bowker and herself on 15 August 2013 was Pastro's first exposure to the detail of the discussions which Coombe and Bowker had had with Thomson on 15 August 2013. In a further email to Pastro on the same day - 12 September 2013 - Thomson asked her to send Coombe and Bowker a "summary of actions that have been taken". He set out five "items/actions that should be considered", the first four of which were concerned with investigating and remedying issues that had arisen in the workplace, and providing support where required. The fifth was of a different character, and provided as follows: I understand that you are currently taking action on Mark Johnston. It would appear that he has a long and poor history of performance/attendance, breached confidentiality while involved in an investigation, asked some [sic] being investigated to lie, he has publicly bullied Sharon (adding to the distress and harassment). If this is found to be true it would be a very serious matter, and we should take the strongest disciplinary action available. There followed a telephone discussion between Pastro and Thomson in which the latter said that it would be a good idea if an independent investigator were engaged to look at the issues regarding Johnston's comments to Bowker in the amenities room, and the advice given to Bennier to deny the allegations against him. Thomson expressed the view that the amount of information provided by Coombe and Bowker had produced a complicated situation which also supported the engagement of an independent investigator. 90 Pastro did not have any of her own contacts for the conduct of the kind of independent investigation which Thomson had proposed. About a week later, she telephoned someone in the respondent's Sydney office and, on the following day, that person provided her with a name of a Melbourne-based company that would be suitable for the task, Papillon Consulting Group Pty Ltd ("Papillon"). After having made contact with Lisa Bradley from Papillon by telephone, on 23 September 2013 Pastro met with Bradley and it was agreed that Papillon would do the investigation. There followed a further meeting, on 25 September 2013, between Pastro and Connellan on behalf of the respondent and Bradley and Damien Hellard on behalf of Papillon. The engagement of Papillon was confirmed and Bradley and Hellard were briefed on the nature of the task. The respondent's representatives gave Papillon no instructions as to how the investigation should be conducted. The respondent's only contribution was to organize the times at which various employees would be interviewed by reference to their rosters. 91 At least until mid-October 2013, Hellard understood that the respondent's predominant purpose in engaging Papillon was to secure the return to work of Coombe and Bowker. Pastro confirmed that this purpose was the initial focus of the investigation. Thenceforth, according to Pastro, the focus was on the allegations made against Johnston. An email from Connellan to Hellard and Bradley dated 10 October 2013 stated the writer's understanding that Coombe and Bowker had been interviewed the previous day. It is apparent, from evidence to which I refer next, that, by that stage, no other employee of the respondent had yet been interviewed by Papillon. At a meeting between representatives of Papillon and representatives of the respondent on 14 October 2013, the latter inquired of the former when a letter would be sent requiring Johnston's attendance for an interview, and were told 17 October 2013. 92 It was not until 23 October 2013 that Hellard sent Pastro a list of the names of the respondent's employees whom he wanted to interview (additionally to Coombe and Bowker), and his estimate of the time that would be occupied in each interview. There were 13 names on the list. By letter dated 25 October 2013, Connellan notified Johnston that the respondent had appointed Papillon "to conduct an independent investigation into a series of workplace incidents and reports". Johnston was directed to attend for an interview at 10 am on 29 October 2013. He received a similar letter dated 13 November 2013, this time directing him to attend for a second interview at 3 pm on 18 November 2013. Those interviews were held as scheduled. In them, Johnston denied that he had advised Bennier to lie at the meetings with Pastro and Jotic on 6 August 2013, and he denied that he had called Bowker a lagger, admitting only that he had accused her of "lagging". 93 On 30 November 2013, Papillon provided its draft report to the respondent. With respect to the allegation that Johnston had advised Bennier to lie, the report contained the following passage: Allegation that Mark Johnston instructed Stewart Bennier to lie when being questioned by DP World management about comments he made on the 18th July concerning Annette Coombe and Stephen Templar. It was alleged by Sharon Bowker that on the 8th August 2013, Mark Johnston admitted during a meeting with Annette Coombe, Sharon Bowker, Sheryl Pastro, Vlad Jotic and David Schleibs that he had instructed Stewart Bennier to lie. During interviews Mark Johnston denied having told Stewart Bennier to lie to Sheryl Pastro and Vlad Jotic during his interviews on the 6th August At interview Stewart Bennier stated that Mark Johnston told him to lie and to deny that he made comments about Annette Coombe and Stephen Templar. During separate interviews with Sheryl Pastro and Vlad Jotic, both stated that during a meeting with Mark Johnston on the 8th August, he admitted that he had told Stewart Bennier to lie based upon advice from David Schleibs. Findings: The corroborating evidence of Sharon Bowker, Sheryl Pastro, Vlad Jotic and Stewart Bennier was preferred to that of Mark Johnston. The main duties of an employee under their contract of employment include obedience, fidelity and care and skill. The duty of fidelity (or the duty to be honest and truthful) is an obligation imposed on employees while they are in the employment of their employer. Employees must serve their employer in good faith and must act to protect their employer's interests. During a workplace investigation related to the professional conduct of the workplace and health and safety of other employees, an employee is expected to participate honestly and without prejudice to the truth and the interests of the employer and other employees. The allegation is found to be substantiated and Mark Johnston is found to have breached his responsibilities as an employee pursuant to his contract of employment and the DP World Code of Ethics. In the "observations and recommendations" section of the report, the following appeared: The actions of Mark Johnston in instructing Stewart Bennier to lie during a workplace investigation is considered to be a breach of DP World's Code of Ethics and his primary duty of employee fidelity. It is recommended that DP World obtain advice on an appropriate course of action. 94 With respect to the allegation that Johnston had accused Bowker of being a "fucking lagger", the Papillon draft report contained the following passage: Allegation of unlawful harassment and bullying in the workplace of Sharon Bowker by Mark Johnston It was alleged by Sharon Bowker that on the 6th August 2013, Mark Johnston approached her in the Amenities area and said in a loud voice in front of other employees, "Sharon, go and get yourself a solicitor, you are going to find yourself in court. I've spoken to Dave, he said to let you know that the MUA is not going to represent you. You are a fucking lagger, never in my life have I ever been upstairs and had someone's name mentioned to me. I saw what you did, a formal complaint about Stewart and the shit that is going on with him in the workplace. You have gone upstairs and put in a complaint with Stephan Templar, supporting a supervisor. I hate people like you, you never involve management, you're a fucking lagger." During interviews Mark Johnston denied having spoken to Sharon Bowker in a loud or aggressive manner. He also denied referring to her as a fucking lagger or that he hated people like her. No other employees who were or may have been in the Amenities area at this time and who were interviewed as part of this investigation corroborated the allegation made by Sharon Bowker. There was a general response that they could not remember if they heard anything on that occasion. Sharon Bowker further alleged that Mark Johnston admitted to referring to her as a "fucking lagger" at the instruction of David Schleibs during a meeting at DP World on the 8th August. This allegation was corroborated by others in attendance at that meeting during their interviews; Sheryl Pastro, Vlad Jotic and Annette Coombe. Findings: The corroborating evidence of Sharon Bowker, Sheryl Pastro, Vlad Jotic and Annette Coombe that Mark Johnston admitted referring to Sharon Bowker as a "fucking lagger" supports the allegation. It was determined that a reasonable person would find such a comment threatening and aggressive and that the comment had the effect of making Sharon feel intimidated. The allegation is found to be substantiated and Mark Johnston's conduct was found to have breached the DP World Discrimination, Harassment, Bullying and Freedom of Association Policy and his duty of care as an employee to ensure a safe and healthy place of work Pursuant to Section 25 of the Occupational Health and Safety Act 2004. In the "observations and recommendations" section of the report, the following appeared: Unlawful harassment and bullying in the workplace by Mark Johnston. The actions of Mark Johnston in this matter are considered to be breaches of DP World's Discrimination, Harassment, Bullying and Freedom of Association Policy and a breach of Section 25 of the Occupational Health and Safety Act 2004, "Duties of Employees." It is recommended that DP World obtain advice on an appropriate course of action. 95 Jena saw the report in early December. He gave it his "very cursory" attention because it was a draft report only. He had not asked for a draft report, and did not know why he was given one. He considered that it would be wasting his time to read the report in any detail, so he did not do so. He asked Pastro to obtain a final report from Papillon. 96 On 11 December 2013, representatives of the respondent and the national company participated in a teleconference to discuss the Papillon draft report. Those present were Pastro, Jena, Thomson, Raj, Jess Blomfeld (in the evidence, identified only as someone concerned with employee relations and industrial matters at a national level) and Paul Scurrah (who had just taken over, or was about to take over, from Raj as Chief Executive Officer of the national company). Jena and Pastro were in Melbourne, the others in Sydney. Of those who attended the conference, only Jena and Pastro gave evidence. 97 According to Pastro's evidence, Blomfeld opened the discussion at the conference by referring to the report, by outlining the findings set out in the report and by referring to the recommendation of Papillon that the respondent needed to take the appropriate course of action in the light of those findings. There was a discussion as to what that course of action should be. Raj's only comment about the Johnston matter, so far as Pastro could recall, was that his (Johnston's) behaviour was unacceptable, and that the workplace had to understand that behaviour of that kind should not occur. Thomson too said that he thought that this behaviour was unacceptable, and the respondent needed to get the final report as soon as possible. No-one proposed, or suggested, that Johnston should be dismissed from his employment. But it was recognised that, upon consideration of the final report, dismissal or some lesser, but still serious, sanction for Johnston were options that might be open to the respondent. Pastro accepted what was put to her by counsel for the applicants, namely, that "active consideration was given to the possibility of dismissal". In this context, the fact that Johnston was a delegate of the Union "came up". Pastro did not recall any of the other participants in the conference raising that aspect, and said, in her evidence, that it might have been raised by herself. In chief, Pastro said that the respondent had "to think about the effects [a dismissal of Johnston] may have on our customers and if, for any reason, the Union took any sort of action, such as industrial action, who and what would need to be made aware of that". It was because it was a possible consequence of the respondent taking disciplinary action against Johnston - be it a final warning or be it termination - that industrial action was considered at the conference. Pastro could not recall Scurrah having made any relevant contribution. 98 It was put to Pastro under cross-examination that, on 11 December 2013, it was decided to dismiss Johnston, the only outstanding question being the matter of timing. She denied that. There is nothing, either in the giving of her evidence or in the context as disclosed by other evidence, which would cast doubt on that denial. 99 Jena remembered very little of the teleconference on 11 December 2013. He could not recall Raj or Scurrah being there. When pressed on the matter of the "outcome" of the conference, the only thing to which Jena would agree without qualification was that his preoccupation was to obtain a final report. If his evidence is to be believed, he was so unimpressed with Papillon having provided no more than a draft report that he sat through this conference with little interest in the discussion that was taking place. Subject to that, he denied that the possible dismissal of Johnston was one of the subjects discussed. 100 Papillon provided its final report to the respondent on 7 January 2014. It differed from the draft report of 30 November 2013 in minor, and presently immaterial, respects. Jena was on leave at the time. 101 On the morning of Thursday 16 January 2014, Pastro emailed Thomson, informing him that she had been liaising with Blomfeld and Jena, and had organised a teleconference with Mark Hulme, then the Acting Operations Director of the national company, on Monday 20 January 2014, upon Jena's anticipated return from leave. She added that she had drafted a letter to Johnston "re his attendance at a disciplinary meeting" which was to be sent to him on that Monday. 102 On the evening of Friday 17 January 2014, Thomson sent an email to Jena, Blomfeld, Pastro and Hulme. The greeting on the email implied that Pastro was the intended primary addressee. Omitting presently irrelevant content, the email read: Thanks for the update. Let's move quickly to get finalised next week. On the 11th December we agreed that we needed a few points clarified in the report (now done), also that we needed a well thought through plan for managing and communicating outcomes with MUA and the impacted employees. FYI - after reviewing report I am comfortable in progressing to the termination of Mark Johnston. A quick summary: • Poor performance history - more than 30 incidents formally raised during his employment, including a final warning in 2012. • Directing an employee to lie to the company whilst involved in providing evidence as part of a formal investigation. Interfering with an investigation. Absolutely unacceptable from a trained and experienced union delegate. • Lying that he did not tell an employee to lie. • Abusing and swearing at an [sic] Sharon B with the intent to humiliate and intimidate. The only intent would be to bully them into retracting their statement. (done in an open area in front of other workers). • Calling Sharon a F…ing Lagger in front of employees. This based on the union code is the worst name that a union person can say about another. • Trying to intimidate the person to prevent them from freely raising issues of bullying and harassment with management. Saying that "you never involve management". Again a breach of our policies and something that is absolutely unacceptable from a trained and experience [sic] union delegate. • In a meeting with MJ and David Schleibs when asked by Sharon why she was not been [sic] supported by the Union she was told that it was because she was a woman. Blatant discrimination. Pastro accepted, as a "possibility", that one of the outcomes which Thomson presumably had in mind was Johnston's dismissal. She also accepted that the "FYI" passage in the email was Thomson's opinion as to "what should occur with Johnston". But she did not, at that stage, concur in that opinion. She disregarded it. 103 Under cross-examination, Jena could not recall the need for "a well thought through plan for managing and communicating outcomes with MUA and the impacted employees" having been agreed to at the meeting on 11 December 2013. But he was, as already stated, "pretty disinterested" in that meeting, and allowed for the possibility that such a need might have been discussed. Nonetheless, he did not interpret the "FYI" passage in this email as "indicating [Thomson's] approval for a decision to dismiss", or as "giving [him] advice in respect of the appropriateness of the termination of … Johnston's employment". 104 Towards the end of Jena's period of leave, the final report was emailed to him, and he commenced to read it. On his return from leave on 20 January 2014, he discussed the report with Pastro. In that discussion, Pastro confirmed that the findings that Johnston had asked Bennier to lie and that he had called Bowker a lagger were consistent with her own understandings from the meetings at which she had been present. 105 On the afternoon of the same day, Jena and Pastro participated in the teleconference which Pastro had arranged. Also in attendance were Scurrah, Thomson, Blomfeld and Hulme. Pastro said that the matter discussed at the conference was the step that should then be taken in the light of Papillon's final report. The need to prepare a letter inviting Johnston to attend a disciplinary meeting, and the timing of such a meeting, were discussed. Pastro could not recall Hulme having made any contribution to the discussion. The only contribution made by Thomson was to say that "you [ie, as I would interpret Pastro's evidence, the Melbourne management of the respondent] need to get this meeting occurring". Blomfeld offered Pastro her help, if required, in drafting the letter to Johnston. According to Pastro, Jena was his usual quiet self in this meeting, participating to the extent necessary to indicate his availability for the meeting proposed. Under cross-examination, Pastro accepted that one of the issues considered in the meeting of 20 January 2014 was the "timeframe in which the question of Johnston's dismissal was to be determined", and that it was decided that "the question of Johnston's dismissal needed to be finalised in the next week". 106 In chief, Jena said that Hulme indicated that he had read the report, and told Jena that he (Jena) had to read it for himself, to understand what was in the report, and to proceed to make his decision accordingly. Blomfeld made a similar comment. The "decision" which Jena was required to make, of course, was what, if anything, should be done in respect of the findings which had been made against Johnston in the report. In cross-examination, Jena accepted what was put to him by counsel for the applicants, namely, that the participants in this teleconference discussed the contents of the report, including the possibility of moving towards a dismissal of Johnston. However, he rejected the suggestion that he interpreted Thomson's email of 17 January 2014 as indicating his approval for a decision to dismiss Johnston, or as amounting to advice in respect of the appropriateness of the termination of Johnston's employment. He also rejected the suggestion that the meeting on 20 January 2014 determined the timing of the termination of Johnston's employment, the substantive decision having been made on 11 December 2013. 107 On 24 January 2014, Pastro sent Johnston a letter notifying him that a "Disciplinary Hearing" would be held into his conduct at 2 pm on 28 January 2014. The letter stated that the external investigators had completed their investigation into the two matters in which he was involved. Johnston had a case to answer "for the following alleged breaches". The letter continued: At this meeting you will be given the opportunity to respond to the following allegations:- • On 6 August 3013 [sic] you attended a meeting with Stewart Bennier as his Union Representative and instructed Stewart to lie and deny any comments he made about Annette Coombe and Stephen Templar to try and avoid any disciplinary sanction being issued against Mr Bennier; • You subsequently admitted on 8 August 2014 [sic] that you had instructed Stewart to lie; It is alleged that your behaviour in the above bullet points are a breach of: (a) The DP World Code of Conduct namely that: "While at work employees are expected to - Act with honesty, integrity and fairness, and show respect for others; Carry out work in a conscientious and competent manner. All DP World employees play an important role in ensuring that the highest standards of ethics and behaviours continue to be delivered". (b) Your employment contract obligation of trust and fidelity. • On Tuesday 6 August 2013 at approximately 4.30pm you approached Sharon Bowker in the amenities area and in a loud and aggressive manner told her that she was a "fucking lagger" It is alleged that your behaviour outlined above constitutes a breach of: (a) The DP World Harassment, Bullying and Freedom of Association Policy. Please find a copy enclosed with this letter. (b) The DP World Melbourne 2011 Enterprise Agreement clause 8.8.7: "assault or abusive behaviour such that it is impracticable or undesirable for the Employee to continue working with or under the person assaulted or abused" (c) Workplace, Health, Safety & Environment Responsibilities that you: "take to take appropriate care for their own health and safety and for the safety of their fellow workers" (d) Occupational Health and Safety Act (Vic) 2004 Part 3, Division 4, Section 25. Duties of employees (1) While at work, an employee must - [….] (b) take reasonable care for the health and safety of persons who may be affected by the employee's acts or omissions at a workplace…. The letter stated that the respondent viewed the allegations "very seriously" and was considering Johnston's "ongoing employment". 108 As it happens, the "DP World Code of Conduct", referred to in Pastro's letter of 24 January 2014, was a section in a publication called the "DP World Australia Employee Handbook" ("the DPW Handbook") which was produced only in September 2013, that is, subsequent to the date of Johnston's alleged conduct. That circumstance has introduced a complication into the respondent's defence to the applicants' wrongful dismissal case. The terms of the code, and of the previous code of conduct, contained in the "P&O Ports Human Resources Handbook" ("the P&O Handbook") are subjects to which I shall return later in these reasons. 109 Before the meeting with Johnston on 28 January 2014, Jena read the provisions referred to above, and satisfied himself that the conduct which was alleged against Johnston was covered by the terms thereof. As he put it in the course of cross-examination: I had read the report a number of times, and all that week and the weekend leading to the meeting on the 28th, and in my view - I applied my own understanding of the policy and the investigation findings, and in my private view I was of the opinion for myself that this was a serious breach and could - could lead to a termination. But I need[ed] to speak with Mark and see what he [had] to present at the meeting. Jena said that, before the meeting on 28 January 2013 he had privately formed the view that Johnston could be dismissed. He denied that his view was that Johnston should, or would, be dismissed. 110 The meeting on 28 January 2014 commenced at about 3 pm. Schleibs was present with Johnston, and Pastro and Ellis accompanied Jena. Jena commenced by referring to Pastro's letter of 24 January 2014, and asked Johnston to respond to the allegations set out in it. Johnston said that he had not instructed Bennier to lie and to deny having made any comments about Coombe and Templar. He indicated that he had asked Bennier just to stick to his story. Johnston denied that he had admitted on 8 August 2013 to having instructed Bennier to lie. With respect to the exchange between himself and Bowker in the amenities room on 6 August 2013, Johnston denied that he had called Bowker a "fucking lagger", or a "lagger", and said that he had not been aggressive in the course of that exchange. 111 This brief summary of the first part of the meeting on 28 January 2014 is taken from the evidence of Jena, but Pastro's evidence was substantially to the same effect. Nothing said by Johnston or Schleibs in the evidence was to the contrary, but I would add that Schleibs recalled Johnston saying, with respect to Coombe's accusation against Bennier, something like, "Something I don't agree with is going to management. It should be handled in-house". 112 There was then a break in the meeting, during which Pastro and Ellis accompanied Jena to his office. Jena called for the break because, in his words, "I wanted to sit back and understand for myself what I had studied and read before the meeting, and what I had heard in the meeting, and how that related to each other before I made my decision." In discussion with Pastro and Ellis, Jena went over what had been discussed in the meeting, and satisfied himself that all three of them had the same understanding of Johnston's responses to the allegations that had been put to him. At some point, Jena telephoned Hulme, and it is apparent that this call must have been on the speaker phone, as Pastro could hear both ends of the conversation. As noted above, Hulme was, at the time, Acting Operations Director of the national company. Jena did not report to him. Jena was not asked, in terms, why he telephoned Hulme during the break in the meeting on 28 January 2014, but the point of the call appears tolerably clear from the following evidence-in-chief: Q: What did you discuss with Mr Hulme? A: I just informed Mr Hulme that I'm in the process of a disciplinary meeting with [Johnston] and … I'm in the process of … making my decision. And there's nothing that has been presented at the meeting that has been different to what has been - has come out of the investigations. Q: What was Mr Hulme's response to that? A: Mr Hulme's response was that - he indicated to me that I had to make a decision on this. Q: All right. Other than that, was there anything else discussed with Mr Hulme? A: I just wanted to inform him that if - if my decision - there may have been a possibility of a backlash in the operations if my decision was going to be to terminate … Johnston. Although Jena was cross-examined about his conversation with Hulme, I did not understand this evidence then to have been challenged. According to Pastro's evidence, in the course of this conversation Jena informed Hulme of the responses which Johnston had given to the allegations against him. 113 Near the end of what had been lengthy cross-examination, Jena was asked whether Hulme had said to him, "Well, you really don't have any other choice, do you?", and he answered in the affirmative. But Jena denied the next proposition put to him by counsel for the applicants, namely, that Hulme made that observation after Jena had told him that he was "going to dismiss Johnston, as … previously agreed." Jena had given no evidence that he said any such thing to Hulme, but the matter was not taken further, either in cross-examination or in re-examination. That was unfortunate because, in the case as finally presented by the applicants, the place and timing of this intervention by Hulme was of some significance. 114 Further light was thrown on this subject in the cross-examination of Pastro. Counsel for the applicants proceeded by reference to an outline of Pastro's evidence that had, apparently, been provided by the respondent before the trial. That outline was not tendered. It was put to Pastro that it was stated in that outline that she recalled that during the discussion it became clear that Jena was thinking along the lines that Johnston should be dismissed. The witness agreed. It was put that it was also stated in the outline that Pastro herself shared Jena's view. Again, the witness agreed. The next four questions and answers were as follows: Q: The outline of evidence states that you recall that after Jena had described the meeting to Mr Hulme, that is described the meeting with Johnston and Hulme, Mr Hulme said words to the effect, "Well, you really don't have any other choice." That's what he said? A: Correct. Q: And that remark he made, I take it, was in answer to Mr Jena indicating to Mr Hulme that he thought, that is Jena thought, that dismissal was the appropriate action to take? A: Yes. Q: And Mr Hulme responded to that indication by Mr Jena in terms which you understood to indicate his agreement with that course? A: Yes. Q: As you understood it, Ms Pastro, from what Hulme said he was communicating to Jena his approval of the view expressed by Jena that dismissal was the appropriate course? A: Maybe. A little later, however, in the course of clarifying a point raised by the court, Pastro said that, after Jena had stated what were his own thoughts, Hulme did not ask any other questions. It was from that that she took it that he agreed with Jena. Hulme said nothing positive in the way of agreeing with Jena. The comment by Hulme, "Well, you really don't have any other choice", was made before Jena had indicated that he was looking at termination. Those were the "exact words" that Hulme used. Prior to Hulme saying that, "it was Mr Jena just filling Mr Hulme in on the meeting and what had been said at the meeting by Mr Johnston". Resuming his cross-examination, counsel then posed the following question, and received the answer set out: Q: I asked you a question a few moments ago that when Mr Hulme said words to the effect, "Well, you really don't have any other choice," I asked you - I said to you that that remark by Mr Hulme was made by him in answer to Mr Jena indicating to Mr Hulme that he thought that dismissal was the appropriate action to take. And you agreed with that. That's so? A: Yes. 115 The proposition to which Pastro thereby agreed was precisely that put to her, namely, that the question in the terms indicated had been asked and she had agreed with it. Pastro's previous evidence made it clear, however, that she had by then realised that that question, and her affirmative answer to it, did not actually reflect the order of events as they occurred in the teleconference with Hulme. In the circumstances, I find that Hulme's comment to the effect that Jena did not have any other choice did not follow upon the latter saying that he thought that dismissal was the appropriate action to take. 116 In the light of the evidence of both Jena and Pastro - each of which, I would find, was conscientiously attempting to recall the flow of the discussion with Hulme - I consider it to be most probable that Hulme's comment about Jena not having any other choice came at the point where he told Jena that he, Jena, had to "make a decision on this". Jena had not at that stage made his decision. Jena then mentioned the possibility of a backlash if his decision was to terminate Johnston's employment. Finally, in an important but presently inconsequential observation, Hulme mentioned that, if Jena decided to rely on gross misconduct for Johnston's dismissal, the respondent would not need to pay four weeks' notice. 117 Then Jena asked Pastro what were the options open to him. Pastro's told him the options that were open with respect to disciplinary action, and what he would need to do if termination of employment was the chosen outcome. Pastro told him that he needed to make sure that he had "covered the points off that were outlined in the allegations and also what breaches had occurred". Jena considered each allegation, and asked himself whether Johnston had breached the provision or duty concerned. Ellis's contribution, according to Pastro, was to assist Jena recalling what Johnston and Schleibs had said in the meeting. 118 Under cross-examination, Pastro accepted that, that during the discussion in Jena's office, it became clear to her that the lines along which Jena was thinking were that Johnston should be dismissed. That was a view which she, Pastro, shared. She did not, however, inform Jena of her view at any time before he had stated his decision that Johnston should be dismissed. 119 Jena decided that Johnston's employment should be terminated. In his evidence, he said that none of Pastro, Ellis and Hulme had any role in the making of that decision. 120 The meeting with Johnston and Schleibs was reconvened. Jena again referred to the breaches mentioned in the letter of 24 January 2014, and told Johnston that he had not given him any reason not to believe that those breaches had occurred. He told Johnston that he had decided to terminate his employment on grounds of gross misconduct. There is some minor controversy as to whether, at this point, Jena added a comment about his own role in the matter. Although Schleibs gave no evidence-in-chief about this meeting, when asked under cross-examination whether Jena had indicated that, in giving Bennier an instruction to lie, Johnston had acted in breach of the code of conduct, Schleibs responded that Jena had said, "Due to the outcome of the investigation, I'm the messenger and your employment will be terminated for the following reasons." That aspect was covered in re-examination, when Schleibs said that Jena's "sum up" was that he had organised an investigation, as a result of which Johnston had been found guilty; and that he was only following an order - "to be the messenger and deliver the outcome". That he had said he was a "messenger", or that he was only following an order or delivering an outcome, were denied by Jena in his own evidence-in-chief. 121 Pastro could not recall Jena saying that he was just a messenger, or that he was just following an order in dismissing Johnston. Under cross-examination, the setting for the comment alleged by Schleibs was put to Pastro rather differently. It was put to her that, after Johnston had been told that he was dismissed, Schleibs challenged the fairness of the decision. Pastro agreed: indeed, in chief she had said that Schleibs' response to the announcement of Jena's decision was to say that it was morally wrong, that Johnston had always worked on the waterfront, that he was 40 year-old man who was going to find it hard to get another job, that the Papillon investigation was not handled well, and that a suspension should be considered instead of termination. Pastro accepted what was then put to her by cross-examining counsel, namely, that Jena "responded to the effect that he was just delivering an outcome". She accepted that Jena "may have said that he was the messenger". It is clear from Pastro's evidence-in-chief that this "may have" was the response of someone who did not recall any such expression. 122 Johnston's dismissal was confirmed in a letter to him from Jena dated 10 February 2014. The meeting of 28 January 2014 was referred to, as were the allegations put to Johnston at that meeting. His responses to those allegations were summarised as follows: • You stated that you were asked to attend a meeting with Stewart Bennier who had been called to Sheryl Pastro's office. • You met quickly with Stewart Bennier, he told you what he thought the reason was that he was being asked to the meeting; you then told him "If that's your story, stick to it". • You attended the meeting with Stewart Bennier; you were worried for him in regards to his job, but thought he handled himself well. • You stated you wouldn't change anything about how you acted or advised Stewart Bennier, other than you should have maybe called a 5 minute break during the meeting, and not made the comment to Sheryl Pastro about "Judge Judy", which you stated was meant in a humorous way. • When asked if you had advised Stewart Bennier to lie, you denied this and again reiterated you had said to him "If that is your story, stick with it". • You stated that in your opinion that other people had encouraged Stewart Bennier to tell management that you had advised him to lie and deny the allegations made in the meeting on 6 August 2013. • You stated that at the meeting on 8 August 2013 you did not admit you had instructed Stewart Bennier to lie. • In regards to the allegation that you had called Sharon Bowker a "Fucking Lagger" on 6 August 2013, you stated that you had not said this, but had used words to the effect of "That is lagging". • You had met with Sharon Bowker later on 6 August 2013 and discussed the matter with her for 2 hours. You left that discussion feeling that the issue had been resolved. • It was not until the meeting on 8 August 2013 that you realised the issue was as serious as it was. 123 Jena's letter continued that the respondent was - … unable to accept your responses as accurate on the basis of contrary information provided during discussions held with all the parties during the period of 6 August 2013 to 13 August 2013 and weighing up the information provided from the independent investigation and has determined, on the balance of probabilities: 1) You had advised Stewart Bennier to lie and deny having made any comments about Annette Coombe or Stephan Templar on 18 July 2013. • During a discussion on 8 August 2013 in the presence of Annette Coombe, Sharon Bowker, Sheryl Pastro, Vlad Jotic and David Schleibs you admitted that you had instructed Stewart Bennier to lie. • When Stewart Bennier attended a meeting on the 13 August 2013 with Gary Ellis, Sheryl Pastro and David Schleibs, he said in the presence of those attendees that you had advised him to lie. By this point, Stewart Bennier had already admitted his actions relating to the events of 18 July 2013 and disciplinary action against him had commenced. Therefore, we do not believe that Stewart Bennier had any particular motive for saying that you had advised him to lie and doing so would not have changed the disciplinary outcome for him. 2) On 6 August 2013 you called Sharon Bowker a "fucking lagger" or said words to the effect "that is lagging". • In either case, the terms "lagger" and "lagging" are both highly offensive and derogatory in the context of our workplace and can incite victimisation and ostracism against someone accused of lagging. It was stated that the conduct referred to in point 1) was considered to be a breach of the respondent's code of conduct and Johnston's contractual obligation of trust and fidelity, and that the conduct referred to in point 2) was considered to be a breach of the respondent's Harassment, Bullying and Freedom of Association Policy, of cl 8.8.7 of the enterprise agreement, of something described as "Workplace Health, Safety and Environment Responsibilities" and of s 25 of the Occupational Health and Safety Act 2004 (Vic). Considering those breaches, and Johnston's personnel file, including a final warning which had been issued to him on 5 October 2012, the decision had been made to terminate his employment without notice on account of gross misconduct.

Areas of significant factual controversy 124 In my rehearsal of the evidence set out above, there is much that was common ground as between the parties or uncontroversial. To that extent, what I have set out may be taken as the court's findings. There were, however, several areas of heated factual controversy, and it will be necessary next to resolve them. 125 The first such controversy related to the question whether, in the lead-up to the first meeting with Pastro and Jotic on 6 August 2013, Johnston advised Bennier to deny the accusation that he had made the derogatory comment about Coombe and Templar. Here there is a direct conflict between Johnston and Bennier. I have reached the conclusion that Bennier's evidence is to be preferred. He struck me as an unsophisticated, uncomplicated, person who related the facts exactly as he recalled them. Of all the witnesses who gave evidence in the case, he was the most uncomfortable in the witness box. The courtroom setting was, evidently, a little overwhelming for him. There was, however, a palpable honesty about the way he gave evidence. By contrast, Johnston was a more assertive and confident witness - a man who, I would say, was familiar with the cut and thrust of workplace negotiations and other meetings in which he would have participated in his time as a delegate. But, on this critical point, where his interests in this proceeding were directly involved, I thought his evidence was constructed. Central to that evidence was that he had advised Mr Bennier to stick to his story. However, the "story" which Bennier had related to Johnston, at least according to the evidence of the former, would have been better described as a confession. In his evidence, Johnston did not proffer the details of any "story", consistent with exculpation, which Bennier had given to him. Indeed, in the meeting on 6 August itself, Bennier did not advance a "story" at all. Rather, he acted exactly as he now says Johnston advised him to act. 126 It is the applicants' case that Johnston did not advise Bennier to deny what he had said about Templar and Coombe, and that the lie was Bennier's own doing, unprompted by Johnston. Indeed, they seek a finding that it was Whelan who advised Bennier to deny having made that comment, and that he (Bennier) subsequently laid the blame on Johnston in order to save his own job. It was put to Bennier by counsel for the applicants that, having been advised to make that denial by Whelan, he (Bennier) had mistakenly interpreted Johnston's advice to him on the afternoon of 6 August 2013 as confirming what Whelan had said. Bennier denied that it was Whelan who had advised him to lie. He affirmed that Johnston was the only person who told him to deny the comment. In their submissions in this case, the applicants urge me to reject these denials. They contend that, once Bennier realised that Coombe's allegation had the corroboration of Bowker and that the truth would most likely come out, in order to save his own job he falsely accused Johnston of having advised him to deny the allegation. 127 In this endeavour the applicants were assisted by two contemporaneously-created documents which, I presume, came to their attention by way of the respondent's discovery. The first was Templar's email of 23 August 2013 to Gary Ellis to which I have referred in para 76 above. The second was Connellan's file note of the meeting held on 29 August 2013 to which I have referred in para 78 above. Neither of these documents was placed into the evidence, or otherwise referred to, in the applicants' evidentiary case in chief. They were used in the cross-examination of some of the respondent's witnesses, and then tendered by the applicants. 128 In a case in which contemporaneous documentary evidence is generally more reliable than self-interested oral testimony given long after the events in question, the applicants' deployment of these two documents - Templar's email and Connellan's file note - has obvious potency. There are, however, some troubling aspects of this evidence. First, neither Templar nor Connellan was called. They are probably to be regarded as having been in the respondent's camp, but there was nothing in the applicants' pleading which foreshadowed reliance on these documents, and they were placed into evidence only after the applicants' case had closed. In the circumstances, I would not place any store by the failure of the respondent to have anticipated the need to call Templar or Connellan. The result, however, is that the court is placed in the unsatisfactory position of being asked to rely on contemporaneous documents, of which the authors have not given evidence, to explain the inconsistency of statements reported in them with evidence given by the man who is supposed to have made those statements. 129 Secondly, Whelan was not called. I can see no obvious reason to suppose that he would have been in the respondent's camp rather than the applicants'. I infer that the applicants' representatives were content to forego the opportunity which the documents presented to call Whelan to attest to what he had advised Bennier to do, and to prefer the course of extracting such admissions from the respondent's witnesses as may have been possible with the assistance of the documents, or at least to muddy the waters apropos Bennier's evidence that it was Johnston who advised him to lie. I accept, of course, that it may have been unrealistic for the applicants to have expected Whelan to give evidence in chief that he advised Bennier to lie, but, having taken the course which they did, they cannot at the same time ask the court to treat the second-hand reports in these documents as the equivalent of direct evidence, to be placed against the direct denials of Bennier. 130 Thirdly, there is an additional curiosity about Connellan's file note. On the first page thereof, after the heading and the list of those attending the meeting on 29 August 2013, there is a section headed "Background", in which Connellan sets out her "understanding of the facts". One of those facts was: When Stewart was asked about his words/ actions he claimed he had not said them, but later admitted he had, and also that he had lied about it on the advice of his union support person (Mark Johnston). That Connellan would have, apparently uncontroversially, recorded a statement by Bennier that it had been Whelan who advised him to make his denial, without an expression of surprise by anyone at the meeting, strikes me as oddly asynchronous with her own understanding of the "background". This adds to the difficulties arising from the non-attendance of Connellan as a witness, and to the complications attending the position taken by the applicants in their final submissions. 131 Aside from the reservations which I have about these documents, there is another aspect of the applicants' contention that is curious. If indeed it had been Whelan, rather than Johnston, who advised Bennier to deny making the offensive comment about Templar and Coombe, and accepting for the moment that Bennier would have seen it in his own interests to shift the blame for the denial, why would he not have taken the obvious course of blaming the man responsible? There is nothing in the evidence, and nothing in the applicants' submissions, that provides a satisfactory answer to this question. It strikes me as being not only unlikely but positively counterintuitive that an ordinary, longstanding, rank and file union member, as Bennier was, would unnecessarily place his delegate into hot water on account of the dereliction of another worker. 132 The other significant element of the respondent's case that Johnston advised Bennier to lie, and the second significant factual controversy which must be resolved, is what is claimed to have been Johnston's own admission to that effect in the meeting with management representatives on 8 August 2013. Pastro, Bowker and Coombe all clearly recall that admission. It is denied by Johnston and Schleibs. It was not suggested by them, and it is not the applicants' case, that there was some part of the discussion which the three women might have mistakenly interpreted as such an admission by Johnston. The difference in evidence with which I am confronted here is quite black and white: some of those present said that the admission was made, while others denied it. 133 This meeting was unusual in that it was, in effect, part of the events of the day. It was called at no notice in response to Bowker's unannounced arrival at Jotic's office in an emotional, and clearly distressed, state. She gave the respondent's management little choice but to deal immediately with what was said to be a pressing situation which had arisen in the workplace: that she was being widely referred to as a "lagger" in consequence of Johnston's comment on the afternoon of 6 August 2013 in the amenities room. Schleibs was correct in saying, as he did in his evidence, that the purpose of this meeting had nothing to do with Bennier or with the truth of what he had said in his meeting with Pastro and Jotic. Bowker said in her evidence that, at the outset of this meeting, she had no idea that Johnston had told Bennier to deny making the comment about Coombe and Templar, and she was, on this point, undoubtedly correct. The same could be said of Coombe and Pastro. 134 The first person to broach that subject was, on the findings I have made above, Johnston himself. The reaction of Bowker and Coombe was consistent with this coming not only as news but as a shock to them. Indeed, if their evidence is to be believed, it was apparent that it came as a shock to Pastro too. I have no hesitation in accepting their evidence. Both Bowker and Coombe were witnesses of self-evident credibility. The events in which they were then centrally involved burned brightly in their recollections. It was obvious from the way they gave their evidence that their recall of those events was clear and sharp. I would make that observation particularly about Bowker, whose strength of mind, and the clarity of whose perception of past events, were features of her evidence. That is not to say that Bowker and Coombe recalled everything about everything in the facts of the present case. When they did not recall things that were put to them, however, they said so; and these things were, for the most part, of minor import. 135 One thing which the applicants' case left unexplained is this: if Johnston did not make this admission at the meeting on 8 August 2013, how was it that Bowker came to inform Bennier that he had done so on 10 August? This conversation was not mentioned in Bowker's evidence-in-chief, the subject being opened only when counsel for the applicants put it to Bowker in cross-examination that she had telephoned Bennier to encourage him to say that Johnston had advised him to lie. She denied that, and Bennier himself said that he could not recall any such thing. In the circumstances, it is not apparent from where the instructions came to put this proposition to either witness. However that may be, Bowker's response to the question revealed that she informed Bennier that Johnston had told management that he had advised Bennier to deny the accusation made by Coombe. That she was possessed of that information is consistent with her evidence of what Johnston had said in the meeting. 136 Turning to Pastro's recollection of what Johnston said at the meeting on 8 August 2013, in her evidence, she did not indicate that Johnston's admission had the same impact on her as it obviously had on Bowker and Coombe (and as they say it apparently did have on Pastro). But this was, I perceive, a result of the differences in style which these women adopted in giving their evidence. Of the three, Pastro was the most restrained - one might say prosaic - in the way she described the events in which she had been involved. I got the impression that she was determined to tell the truth as she saw it, but to provide no embellishment, or to show any emotion, in doing so. The fact remains that she too gave evidence that Johnston had admitted telling Bennier to lie, and I regarded her as a truthful witness. 137 Johnston's denial of having made such an admission has to be seen against the reality that it was, as he would have understood, a very damaging admission to have made. He had every reason to deny it, even three days later when Bennier asked him about it. He continued to have every reason to deny it, in the Papillon investigation, on 28 January 2014 and in his evidence in this court. Even on the evidence of those who claim to have heard it, the admission came out incidentally in the course of an argument about whether Pastro and Jotic held a written statement by Bowker. The position that Johnston adopted was that the meeting was not about the Bennier incident at all. Likewise, as I have noted elsewhere, Schleibs' evidence tended to proceed from his conviction that the issues concerning the rumours circulating about Bowker could be, and were, isolated from any discussion about the Bennier incident. I got the impression that he was concerned to let the court know what Johnston would have said in the context of the meeting, rather than what he did in fact say. 138 The Bennier incident did, however, work its way into the discussion in the way described by Pastro, Bowker and Coombe in their evidence. I prefer the evidence of those witnesses to that of Johnston and Schleibs. I am satisfied, on the strong probabilities, that Johnston did make the admission, and that he did so in a moment of unguarded frankness from which he may have been shaken by the reaction of those present to what he had said. 139 For the reasons I have given, I find that, on 6 July 2013, Johnston, having been informed by Bennier of the substance of the comment he had made in the amenities room about Templar and Coombe, advised him to deny it when he met with Pastro and Jotic on the afternoon of that day. 140 The third factual controversy which needs to be resolved is whether Johnston called Bowker a "fucking lagger" in the amenities room on the afternoon of 6 August 2013. Johnston admitted to telling her that what she had done was "lagging", but it was submitted on behalf of the applicants that that would not warrant summary dismissal. I do not need to concern myself with that latter issue, since I propose to accept Bowker's evidence that Johnston called her a "fucking lagger". 141 I would commence by putting Walmsley's evidence to one side. As I have found, his evidence about being at work with Johnston on Sunday 11 August 2013 was untruthful. His actual evidence about the appearance and mannerisms of Johnston and Bowker in the amenities room on 6 August 2013 was of little or no value to the court. He was not part of the conversation, and could not hear what was said. 142 In the result, I shall have to decide this factual question by reference to the evidence of Bowker and Johnston alone. The case for accepting Bowker's evidence derives some support from the fact of her complaint to Jotic at about 6 pm that day. Although that might be thought to be no more than a self-serving statement by someone involved in the case, it was sufficiently proximate to the events in issue for Bowker, as observed by Jotic, to be in a state of distress. To the extent that the controversy is whether Johnston referred to "lagging" or called Bowker a "lagger", this complaint is consistent with the latter, more so than with the former. 143 With respect to Johnston's denial of having called Bowker a "fucking lagger", it is not irrelevant that I have now found that he advised Bennier to lie in a meeting with representatives of management. Confronted by Bowker's allegations on 8 August 2013, there is no reason to think that Johnston would not, in effect, take his own advice and deny them, even if they were, to his knowledge, true. At the very least, the findings which I have made against Johnston in relation to the Bennier incident substantially undermine the submission now made on his behalf that, on that date and indeed in this court, he was telling the truth about what he said to Bowker on 6 August 2013. 144 I do not need to repeat the observations which I have already made about the credit which I would attach to the evidence of Johnston and Bowker. The latter was generally the more credible witness by a considerable margin. So it was in this instance. It is possible that, confronted by Bowker's allegation, Johnston's defence, on 8 August 2013 and since, involved the adoption of a different grammatical form of the same word with a view to clouding the issue of what Bowker heard him say. That is not an uncommon stratagem for someone who has overstepped the line of decency or propriety with a hasty word, and who is later called to account. Alternatively, it is possible that Johnston himself did not clearly recall what he had said, and has since filled the gaps of his own recollection in the most benign terms: again, common experience tells that it is often the hearer of an aggressive or hurtful statement who has the clearer recollection than the speaker. The present case ought not, however, turn on such speculations. The basic fact is that, having observed the evidence given by both these witnesses, I believe Bowker. I do not believe Johnston. 145 The fourth factual controversy which needs to be resolved is whether, during the meeting in the board room on 8 August 2013, Johnston admitted that he had called Bowker a "lagger". The only witness to have given evidence that he did so was Pastro, and she was subsequently cross-examined to the point of accepting that Johnston may have gone no further than to admit that he had told Bowker that what she had done was lagging. As against this, the evidence of Bowker, Coombe and Schleibs, and of Johnston himself, was that he denied having called Bowker a lagger. I would accept the evidence of those witnesses. I would find on the probabilities that, in this meeting, Johnston did express such a denial.

Grounds for summary termination of employment 146 The respondent justified its summary termination of Johnston's employment on two broad grounds. The first was that the two instances of conduct alleged against him - that he advised Bennier to lie and that he called Bowker a fucking lagger - of themselves amounted to misconduct, and to a breach of the common law duty of loyal and faithful service, which justified summary dismissal. The second was that each instance of conduct amounted to wilful disobedience of directions which it had given to its employees as to the standards of behaviour which were expected of them. I shall refer in detail to those directions when I deal with the second ground. I shall, however, commence with the first ground. 147 The applicants accepted that, if I should find that Johnston did advise Bennier to deny that he had made the offensive comment about Coombe and Templar in the amenities room on 18 July 2013, and thus to lie to Pastro and Jotic, that would be conduct justifying the summary termination of his employment. I have, therefore, no need further to examine that question. 148 Turning to the respondent's case that Johnston's abuse of Bowker in the amenities room on 6 August 2013 amounted to conduct justifying the summary termination of his employment, it is convenient to commence with a consideration of the word "lagger", and the circumstances in which it was used at the terminal. 149 Neither the Oxford English Dictionary nor the Macquarie Dictionary provides a definition of this word which comes close to its connotation at the terminal. However, the Australian Oxford Dictionary gives an Australian meaning to "lag", when used as a transitive verb: "inform against". Thus "lagger", in Australian colloquial usage, is "a police informer, esp. a prisoner who informs against a fellow prisoner". This is the meaning of the word that has resonance in the context of the present case. It does not take a lot of imagination to perceive that, in the right setting, the identification of a member of a group as a "lagger" could have serious consequences. 150 In his evidence-in-chief, Johnston said that "lagger" was "not an unusual word on the wharf". He continued: You hear it every now and again. It's not a common word, but, you - you know, you might be lagging behind in - in your job or, you know, it's not a word that you hear every day but it's - yes, you - you might have got a tip on the races on Saturday and don't tell anyone and in a joking way, the next day, the price goes down from ten to one to six to one and, you know, "Who did you lag the horse to?" It's - yes, it's not a derogatory term. That evidence was disingenuous. In the context of the conduct of which Johnston was accused, for him to suggest that a "lagger" was someone who fell behind on the job, and to introduce some wholly pointless analogy about horse races, was, I would have to say, to play fast and loose with the truth of the matter, as Johnston must surely have appreciated. On any view, this is a derogatory term, and was so used by Johnston on 6 August 2013. The evidence uniformly is that to call a fellow stevedore a lagger is an insult of a serious order. 151 I shall commence with the evidence of the working stevedores. Bowker said that to call someone a "lagger" was offensive. She continued: Well, in our workplace, being called a lagger … the only way I could best describe it it's inmate mentality. It's like inmate mentality. Our workplace is inmate mentality. You just don't dob. You don't - you're not supposed to be a whistleblower. You're not supposed to inform and report incidents against other employees, other MUA members. So, yes, the ramifications of being called a lagger are pretty severe. Coombe said: In our workplace, lagger is probably one of the worst words that you can be called. The environment that we work in is like a jail so it's an inmate mentality where - you know, words such as lagger, if you're in jail, that would mean you would be bashed or killed or - where things - it's the worst word you can be called at the wharf, it is the worst word. Neither Bowker nor Coombe was cross-examined on this evidence. 152 Bennier said that the word meant "dobber". This was a less elaborate description than those given by Bowker and Coombe, but it captured at least the core meaning of the word, a meaning which was conspicuous by its absence in the evidence given by Johnston, as set out above. The concept of "dobbing" does, of course, bear a strongly pejorative connotation. Led by counsel for the respondent, Bennier agreed with Johnston's acknowledgement (previously extracted with some difficulty during cross-examination) that, in the right context, the word "lagger" could be seen as a serious insult. 153 Walmsley gave no evidence on this subject. 154 Although less weight should be given to the evidence of management representatives as to the waterfront meaning of "lagger", such evidence was given without objection, and I shall refer to it. Pastro said that a "lagger" was "someone [who] reports something to management that may, you know, dob someone in for doing something that they maybe shouldn't have done." She agreed that, if used in the right context on the waterfront, the word could be seen as a significant insult. It would be potentially significant because "people don't normally report things to management, so it's seen that they're, you know, filling us in on something that we shouldn't know." Jotic said that the word was "much like a whistleblower - someone who is seen to be betraying their own colleagues." He too agreed that, in the right context, use of the word could be seen as a significant insult. He added that it could "lead to someone to be ostracised by their colleagues if they are seen to be a lagger or branded a lagger." Jena said that a "lagger" was "somebody who gives up somebody to management", and he agreed that, if used in the right context, the word could be used as a significant insult. 155 Schleibs was not asked in chief about the meaning of this word, but his evidence under cross-examination contained a limited and, I would have to say, grudging acknowledgement of the connotation which the word has on the waterfront. He said that a "lagger" was "a person that goes and tells on another person - might go and tell the foreman he's not pulling his weight. .… [H]e might go and tell on someone, you know. It's … something like what you say but management doesn't have to be involved." He agreed that, if used in the right context, the word could be a serious insult, and could cause offence. In evidence were three posts by Schleibs on Johnston's page in a well-known social media electronic site on 31 January 2014. The subject of a number of the posts on that page was the support which Johnston had received, presumably in the aftermath of his dismissal. One of Schleibs' posts was "They (dpw) are now counselling the effected [sic] 1% laggers". Reluctantly, and only after some persistence by cross-examining counsel, Schleibs accepted that he used the term "laggers" as a deliberate insult aimed at Bowker, amongst others. 156 In a context such as that in which Bowker found herself on 6 August 2013, the word "lagger" is more than an insult, even a serious one. It connotes behaviour which betrays the solidarity and collective interests of the group with which the speaker is associated, and the provision of assistance to someone assumed to have quite different interests, the employer. The very notion, accepted by Schleibs, that "management doesn't have to be involved", implies the existence of a system of authority and control at the terminal which stands apart from the employer which stevedores are paid to serve, and a breach of norms of behaviour established and enforced through such a system. The evidence in this case has shown how ineffectual management codes of practice and workplace policies may be in the face of a system of that kind. The reaction of the workforce to the news that Bowker had been branded (an apt metaphor, in my view) a lagger, which led to her arrival at Jotic's office on 8 August 2013 in a state of obvious distress, is evidence enough of the potency of this word, and of its value in the hands of someone who perceived that such norms of behaviour had been breached. 157 I turn then to the respondent's proposition that for Johnston to have called Bowker a "fucking lagger", in the context that he did and having the connotation to which I have referred, was a breach of his common law duty of loyal and faithful service. I do so on the assumptions that the respondent had given no explicit direction against the use of the word "lagger", or of language within which that word would be comprehended (a valid assumption) and, for the moment, that its policies and the code of conduct to which I refer below had no relevant application. The submission was made on behalf of the applicants that, if I should find that Johnston called Bowker a "lagger" in the circumstances which obtained on 6 August 2013, nonetheless such conduct "does not have the requisite degree of seriousness to amount to repudiatory conduct…." For reasons which follow, that submission cannot be accepted. 158 The starting point is that an employee had made a complaint about a comment made, during working hours and on the respondent's premises, by another employee, which implied dereliction of duty on the part of a supervisor. The context of Bennier's alleged comment was not a private one. Pastro and Jotic were not only entitled but probably obliged to investigate that complaint. The next point is that the only direct evidence of the making of the comment would be that not of the complainant herself but of other employees, namely, Madigan, Bowker and Bennier himself. The prospect of Bennier, the party accused, providing any assistance could not have been taken seriously. The investigation on which Pastro and Jotic embarked would, therefore, self-evidently have led nowhere without the evidence of Madigan and/or Bowker. Next, Jotic was entitled to direct Bowker to attend for an interview and there to answer questions put to her for the purposes of such an investigation. This he did. That is to say, in attending for interview and speaking truthfully, Bowker was performing her required service as an employee of the respondent. 159 Had Johnston, in order to prevent Pastro and Jotic getting to the truth of the matter, used threats, bribes or other inducements to persuade Bowker not to attend for such an interview, or to claim amnesia if she did, that could only be viewed as serious misconduct justifying summary termination. That an employee should wilfully seek to frustrate an investigation upon which management had embarked in a matter of legitimate and serious concern to them could be viewed in no other way. Johnston did not do that, of course. At the time when Bowker spoke to Pastro and Jotic on 6 August 2013, he knew nothing of the matter. But, as soon as he became apprised of Bowker's contribution to the investigation, he directed an invective towards her that could only be regarded as retribution for what she had done. And, as I have found earlier in these reasons, he did so in a way, and in an environment, which was calculated to make an example of her in the presence of her own workmates. Although Johnston's intervention in this way was after the event apropos Bowker's interview with Pastro and Jotic, it did, in my view, have the same quality as that of a before-the-event intervention which was designed to frustrate the investigation process, in the way I have described in this paragraph. 160 The notion that Bennier's mistake should have been handled "in-house" by the Union and its site delegates does not exculpate Johnston: to the contrary. What Bennier said did not relate to union business. The basis of his concern was the allocation of work by a supervisor, and the supervisor's opinion of him as a worker. The hurtful comment that he made about Coombe and Templar did not relate to the conduct or status of the former as a union member, or to any issue which was of apparent union concern. This comment was four-square within the legitimate concerns of the respondent. To the extent that Johnston would ask the court to understand that he would, if Coombe had not complained and Bowker had not supported her, have been engaged in the benign project of smoothing over relations between Templar, Coombe and Bennier without management ever needing to know about the issue, I can only say that he (Johnston) fundamentally misapprehends the distinction between his role as a union delegate and his duty of loyal service to his employer. 161 The submission was also made on behalf of the applicants that the addition of the profane adjective to the "lagger" invective did not "materially alter the allegation given the nature of the workplace at which swearing is commonplace and Bowker herself has on a number of occasions used coarse and profane language". In this latter respect, the applicants led a deal of evidence from Johnston and Schleibs about Bowker's preparedness to use foul language in the workplace, particularly in meetings in which, for one reason or another, she found herself in an argumentative situation. She was cross-examined about this, and made no secret of the fact that she was content to converse, at times, in terms that would not normally be associated with her sex, at least in polite society. I would say two things about this line of defence of Johnston's conduct. First, the conduct was not made the more serious because of the fact that the person to whom Johnston directed these words was a woman. My conclusions would have been the same had the addressee been a man. Some assumed sensitivity to coarse language on Bowker's part is no element of the reasoning which has brought me to my conclusion in this compartment of the case. Secondly, the significance of the adjective used by Johnston is not that it was profane: it is that it was intended to add, and did add, an emphatic expression of contempt to the connotation which the word "lagger" carried in itself. 162 For the above reasons, and ignoring for the moment any contribution that might be made to the respondent's case by the terms of its code of conduct and policies, I have reached the conclusion that Johnston's branding of Bowker as a "fucking lagger" in the amenities room on 6 August 2013 amounted to conduct which justified the summary termination of his employment. 163 Additionally to their submission that Johnston's conduct in the amenities room on 6 August 2013 did not have the requisite degree of seriousness to amount to repudiatory conduct, the applicants submitted that there was "no reason why Johnston's conduct … could not more appropriately [have been] dealt with by other disciplinary action, short of dismissal". Once it be held that Johnston's conduct did justify summary dismissal, however, the question whether the respondent, as employer, should have dealt with the conduct by some more appropriate sanction is not justiciable in an action for wrongful dismissal such as the present one. Further, neither in the applicants' address nor in their cross-examination of Jena or Pastro was any attention given to the question of the respondent's rights or obligations, under Johnston's contract or otherwise, to administer different disciplinary sanctions, the existence of which is assumed in this aspect of the applicants' submissions. For each of these reasons, I hold that the matters raised in those submissions do not identify any impediment to the respondents' exercise of its rights to terminate Johnston's employment in the circumstances which arose. 164 I turn next to the alternative basis upon which the respondent sought to justify its summary dismissal of Johnston, namely, that his conduct amounted to breaches of the code of conduct set out in the DPW Handbook, of the respondent's policy on discrimination, bullying and harassment and of other sources of obligation referred to in the respondent's letters to Johnston of 24 January and 10 February 2014. I am at something of a disadvantage in this department of the case since, save for the matters mentioned in paras 165 and 180 below, the applicants made virtually no submission at all on the subject. Johnston having been dismissed without notice, the onus was on the respondent to make good its case that it was entitled to do so. In its Amended Defence, it did not plead out the facts that would have established such a case. The applicants made nothing of that omission, and proceeded to trial on the pragmatic assumption that the question whether Johnston had conducted himself in such a way as would justify summary dismissal was a live issue at all levels. 165 In the applicants' opening, it was not - at least clearly - contended that, if the facts of the conduct alleged against Johnston were made out, those facts would not constitute good grounds for summary termination. Consequently, the respondent's final outline of argument proceeded on the assumption that it had to deal with two things only, first, whether the conduct took place as alleged, and secondly, whether the contract had been affirmed. However, the applicants' own outline, and their submissions, extended to the contention that the second incident alleged against Johnston - that involving Bowker in the amenities room - would not, even if established on the evidence, amount to sufficient justification for summary dismissal. Counsel for the respondent joined issue at this level. But both sides focussed upon the question whether the conduct, of itself, was sufficiently serious to justify summary dismissal at common law. Very little attention was given to the question of the consistency of the conduct with the written directions which had been issued by the respondent. Counsel for the applicants contended themselves with the submission that the lagger remark, if found to have been made, would not constitute a contravention of "any direction or mandatory prohibition" in the respondent's policy documents. Counsel for the respondent referred to the code of conduct and the policy, when questioned by the court about it. 166 However these reservations on my part may be, the fact remains that the respondent relied upon breaches of these instruments as justifying its dismissal of Johnston, and that case must be considered and ruled upon. Counsel for the respondent made it clear that its code of conduct and the policy were not said to have been incorporated into Johnston's contract of employment. Rather, their legal status was that of instructions given by the respondent to its employees at the terminal, wilful breach of which would constitute grounds for summary dismissal under the common law. Counsel for the applicants were not heard to resist this proposition at the conceptual level. 167 The "code of conduct" referred to in the respondent's correspondence with Johnston, and that by reference to which Jena decided that Johnston was to be dismissed, was contained in the DPW Handbook. Under the heading "Code of Conduct", the following appeared: At DP World Australia, we share common values which set the behavioural standards when dealing with our customers, our stakeholders and each other. We are committed to ensuring that all company business is conducted according to rigorous ethical, professional and legal standards. While at work employees are expected to: • Act with honesty, integrity and fairness, and show respect for others; • Engage in the proper use of DP World information, funds, equipment, property and facilities; • Avoid real or apparent conflicts of interests; and • Carry out work in a conscientious and competent manner. All DP World employees play an important role in ensuring that the highest standards of ethics and behaviours continue to be delivered. Employees have a responsibility to report any breaches of this Code of Conduct, our policies and procedures. Any breaches may result in disciplinary action, including potential termination of employment. Act with honesty, integrity and fairness, and show respect for others. DP World endeavours to provide a work environment of integrity, equity and respect for all of our people. We are committed to providing a workplace that fosters a positive team spirit, friendship and harmony. After this, there was a section headed, "Discrimination, Harassment, Bullying and Freedom of Association Policy", which commenced as follows: Unlawful and unacceptable behaviours can undermine morale and can negatively affect the ability of employees to achieve their full potential. As such, unlawful and unacceptable behaviour - including discrimination, harassment, bullying and behaviour which impedes freedom of association - will not be tolerated at DP World. On the subject of bullying, the following appeared: Bullying is repeated, unreasonable behaviour directed toward an individual or group of employees, which may cause harm, including risks to health and safety. Some examples of conduct that may amount to bullying are: • Demeaning language; • Threats; • Verbal abuse; • Outbursts of anger or aggression; • Physical or verbal intimidation; • Excluding or isolating; • Ganging up. 168 As noted previously, the DPW Handbook had been promulgated only in September 2013, but its non-application at the time of the conduct of which Johnston was accused escaped the attention of Jena, as it seems to have escaped the attention of Hellard and of Pastro. In its case in court, counsel for the respondent took the position that this was the merest of formalities, and, as I shall note below in another context, led Jena to give the evidence that his decision would have been the same had his focus been on the P&O Handbook. However, the passages which appear under the heading "Code of Conduct" in the DPW Handbook, as set out above, did not appear at all in the P&O Handbook. In the latter, there was a heading "Code of Conduct", within a section headed "Conduct and Performance", where the following appeared: In any organisation there is a need for rules, regulations and standards to guide the organisation's operation towards the achievement of its goals and objectives. The Code of Conduct ensures that accepted standards of conduct and work performances are maintained within P&O and that individuals are treated in a consistent and fair manner. Your Manager is responsible for ensuring that you are made aware of and fully understand your work responsibilities, the Company's rules and standards of conduct. Failure to comply with the Principles of the Code of Conduct will be dealt with in accordance with the Disciplinary procedure. General community and common law standards of behaviour will generally apply in conjunction with the following indicative examples…. A table then set out examples of "behaviours" that employees were expected to demonstrate, of "behaviours" that were not acceptable and of "behaviours" that would be considered "serious or serious and wilful misconduct". The first of these categories included, "Treat fellow employees … in a co-operative, fair, dignified, and open manner, consistent with the principles of fair treatment and non-discrimination". My attention was not drawn to any relevant passage in the second or third categories. The text which followed the table made it clear that the behaviours there listed were examples only, and were not "meant to include or exclude every possible behaviour". This section of the P&O Handbook concluded as follows: You are expected to familiarise yourself with the P&O Ports rules and standards of work. You are also expected to monitor and regulate your own activities to ensure that, when at work, you can perform to the standards expected of you. 169 It was submitted on behalf of the respondent that Johnston's abuse of Bowker amounted to treating her in a manner that was not "dignified". Perhaps so, but my concern here would be that the passage as a whole does not seem to be addressing itself to the world of conversations between employees in environments such as the amenities room at the terminal. 170 The P&O Handbook did deal with the subject of bullying, but not in a section described as a code of conduct. In the section headed "Fair Treatment", under the subheading "Workplace Harassment", the following appeared: P&O Ports is committed to ensuring that employees, consultants, visitors and customers are treated fairly and equitably in an environment free of unwelcome conduct that may offend, humiliate or intimidate. Harassment may take the following forms: • Sexual Harassment; • Bullying and Workplace Violence; • Vilification There followed definitional, or explanatory, passages in respect of sexual harassment, workplace violence, bullying and vilification. Bullying was defined in the following terms: Bullying is the repeated, less favourable treatment of an individual by one or more people in the workplace. It involves behaviour that might be considered unreasonable and inappropriate. It also includes behaviour that intimidates, offends, degrades or humiliates a worker, possibly in front of co-workers or customers. What Behaviour Constitutes Bullying • Undermining work performance, deliberately withholding work-related information or resources; • Teasing or making someone the brunt of pranks or practical jokes; • Ignoring or isolating individuals; • Name calling and ridicule; • Leering and invasive questions; • Verbal abuse or belittling comments; • Physical abuse; • Physical contact. 171 In his evidence-in-chief, Johnston said that he did not know of the existence of the P&O Handbook, and could not recall ever having been provided with it. Under cross-examination, Johnston was shown a photocopy of the DPW Handbook, and said that he did not recognise it. He was not questioned about the P&O Handbook. Pastro said that, so far as she knew, the P&O Handbook had been "in place" between approximately 2003 and September 2013. Neither she nor any other of the respondent's witnesses, however, gave evidence that employees, or that Johnston specifically, had been given a copy of it, or instructed to comply with it. Pastro was not cross-examined on her evidence in this respect, the result of which is that the court does not know what in fact happened by way of putting and keeping this handbook "in place". 172 The confusion which existed in Jena's mind about the handbook which was current in August 2013, and the identification of the wrong code both in the correspondence which was sent to Johnston and in Jena's own deliberations, might have presented substantial problems for the respondent in defending this aspect of the applicants' wrongful dismissal case. However, there are two considerations which place matters in a different light. The first is evidence given by Johnston under cross-examination. He was taken to the code of conduct in the DPW Handbook, and accepted that that was the code referred to in the respondent's letter to him of 24 January 2014. When asked whether he understood that, as an employee of the respondent, he was required to conduct himself consistently with that code, his response was, "totally". He was taken to the passage which set out examples of bullying, and asked whether he understood that, as an employee of the respondent, he was required not to engage in conduct of that kind. Again, his response was, "totally". He was not re-examined on these subjects. 173 The second consideration is the way the applicants conducted their case in relevant respects. As I have noted, they made no submission at all about the terms, or the applicability, of the code in the context of Johnston's abuse of Bowker in the amenities room on the afternoon of 6 August 2013. Specifically, no submission was made that the terms of the code, as set out in the DPW Handbook, were not, at least in point of content, the equivalent of instructions with which Johnston was required to comply. In the light of his evidence under cross-examination to which I have referred, I consider that this omission can only have been a reflection of a conscious decision as to how the applicants would conduct their case. 174 I do, therefore, approach this part of the case on the basis that the provisions of the DPW Handbook set out in para 167 above were instructions with which Johnston was required to comply, even in August 2013. In the view I take, Johnston failed to comply with so much of these instructions as required him to "show respect for others". That may have been an instruction of very little precision, I accept, but Johnston's treatment of Bowker was egregious, and could not on any view be defended as consistent with the obligation referred to. On the other hand, I do not think that the obligations of "honesty, integrity and fairness" quite fit circumstances such as those at hand. Neither would I hold that Johnston engaged in bullying within the terms of the code. It may be that his conduct amounted to demeaning language, verbal abuse and verbal intimidation, but it is made clear that, before conduct of this kind can amount to bullying in the defined sense, it must be "repeated". In the present case, the respondent relies upon a single, apparently isolated, episode of abuse. I do, of course, say nothing about the wider issues that seem to have confronted Bowker in consequence of Johnston's abuse of her. 175 The other of the respondent's instructions which was relied on in its correspondence with Johnston was its "Discrimination, Harassment, Bullying and Freedom of Association Policy" ("the Discrimination etc Policy"). Johnston could not recall whether he had seen this policy, but he accepted that, since March 2010 (the month in which the policy was promulgated), he had been obliged to conduct himself consistently with it. For the reasons which I gave above in relation to the DPW Handbook, I would hold that this policy was also to be treated as an instruction with which Johnston was required to comply. 176 The section of the Discrimination etc Policy which dealt with bullying was in the following terms: 3. Bullying 3.1 What is bullying? Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that may cause harm, including risks to health and safety. Unreasonable behaviour means behaviour that a reasonable person having regard to all the circumstances would expect to humiliate, intimidate or threaten another person. Such behaviour can include an individual's or group's actions or practices which humiliate, intimidate or threaten another person. Bullying may also amount to unlawful discrimination or harassment. 3.2 What are examples of bullying? The following types of behaviour, particularly if directed towards an individual repeatedly, are examples of conduct that may amount to bullying: (a) demeaning language; (b) threats; (c) verbal abuse; (d) outbursts of anger or aggression; (e) physical or verbal intimidation; (f) excluding or isolating; and (g) ganging up. Reasonable action taken in a reasonable manner by an employee to performance manage an employee or to discipline or dismiss an employee will usually not constitute bullying. 177 Section 5 of the Discrimination etc Policy was headed "What Are Your Obligations?", and included the following passage: Everyone at the Company has the legal obligation not to discriminate against, or harass for any unlawful reason, or bully for any reason any employee, agent, contract worker, contractor, supplier or visitor. Specifically, you are required NOT to: • engage in conduct that amounts to unlawful discrimination, harassment, bullying or a breach of freedom of association laws. 178 Consistently with the approach I have taken above in relation to the code of conduct, I would not hold that Johnston's abuse of Bowker on 6 August 2013 fell within the definition of bullying in the Discrimination etc Policy: it was not "repeated". It was submitted on behalf of the respondent that para 3.2 of the policy, setting out specific examples of bullying, was not confined to repeated behaviour, by reason of the inclusion of the passage "particularly if directed towards an individual repeatedly". Given the terms of para 3.1 (which was governing), I would not so construe para 3.2. I would read "particularly" as a word of emphasis, rather than of implicit extension. Its role was to reinforce the seriousness of conduct if repeated more than once. 179 The other relevant provisions of the Discrimination etc Policy are those which related to sexual harassment and the procedure for making complaints. The policy defined sexual harassment in terms which included the following: Unlawful sexual harassment is one form of harassment which the law does not allow. Unlawful sexual harassment includes, but is not limited to: … (g) unwelcome comments or questions about a person's sex life; Under the heading "What will the Company do if you have a complaint?", the Discrimination etc Policy provided as follows: It is the Company's intention that all complaints of unlawful discrimination, harassment, bullying and breaches of freedom of association will be treated seriously and in accordance with the following principles: (a) investigations of complaints should be conducted in a prompt and appropriate manner and as confidentially as possible; (b) a person alleged to have acted inappropriately should be informed of the allegations, given an appropriate opportunity to explain his or her version of events and treated as innocent unless and until the allegations are determined to be true; (c) no employee should be victimised or otherwise disadvantaged as a result of making a complaint, acting as a witness to conduct complained of or where accused of a complaint that is determined to be without foundation; and (d) when attending formal interviews as part of an investigation, a person accused of a breach of this Policy may have a support person present at the meeting. You should also be aware that if you lie about or exaggerate a complaint, the Company will view this as a very serious matter, and you may be subject to disciplinary action, including possible termination of employment. 180 The applicants accepted that Coombe's written complaint of 31 July 2013 was a complaint of sexual harassment within the terms of the provision set out above. They accepted also that Bowker acted as a witness to Coombe's complaint within the terms of the procedure set out above. They submitted, however, that Johnston should not be found to have "victimised or otherwise disadvantaged" Bowker as a result of her having so acted. The basis for this submission was that Johnston did not call Bowker a "fucking lagger", make any other abusive comments to her, or otherwise "seek to intimidate her". Because of the findings of fact which I have made above, this submission must be rejected. Johnston called Bowker a lagger as a result of her having acted as a witness (in which respect I note that the applicants made no submission that any difference was made by the circumstance that Johnston believed that Bowker had been a complainant rather than a witness, a forbearance which, in my view, was well-founded). In so doing, Johnston victimised or otherwise disadvantaged Bowker. There was, in my view, a clear breach of the provision of the policy referred to. 181 The position reached, therefore, is that Johnston's abuse of Bowker in the amenities room on 6 August 2013 amounted to a breach of the obligation arising under the code of conduct to show respect for others, and a breach of the obligation arising under the Discrimination etc Policy not to victimise or otherwise to disadvantage a witness to a complaint of sexual harassment. The question which remains is whether Johnston thereby engaged in conduct which justified the summary termination of his employment. 182 Here the starting point is the self-evident circumstance that Johnston's breach of these provisions was wilful, not only in the sense of not being inadvertent or unintentional, but also in the sense of having the conspicuous object of subjecting Bowker to the very detriments from which the provisions sought to protect employees. Johnston breached both the letter and the spirit of the provisions. 183 As I have noted above, the legal significance of Johnston's breaches of the provisions is that they constituted disobedience to directions given by the respondent. Although a submission along the lines was not made on behalf of the applicants, I suppose they would desire to be understood as invoking the principle that disobedience will justify summary dismissal only in very serious situations, and that, normally, an isolated act of disobedience will not be sufficient: see Irving, M, The Contract of Employment, 2012, para 10.54. It is at this point, however, that it becomes artificial to consider the sufficiency of Johnston's breaches of the code of conduct and the Discrimination etc Policy as justification for his dismissal as though there were no other grounds available to, and used by, the respondent. Johnston could only be dismissed once. There were multiple grounds which would support that dismissal. The question whether the dismissal could have been defended on the basis only that Johnston's conduct amounted to wilful disobedience does not, in the circumstances, arise, and any opinion I might offer on that subject would be hypothetical. On any view, because of the context out of which it arose and the findings I have made in relation to Bennier's denial, it could not be said that Johnston's abuse of Bowker in the amenities room was an isolated instance of misconduct. 184 Johnston's obligation under the policy not to subject a witness to a complaint of sexual harassment to victimisation or other disadvantage was, in my view, closely aligned with his common law duty of loyal and faithful service. The reasons which I have set out at paras 158-160 above might equally have been given in answer to the question whether a breach of the policy constituted disobedience of sufficient seriousness to justify summary dismissal. But the policy had the additional significance that it represented the respondent's emphasis upon the importance of the obligation referred to, and its expression of that obligation in the form of a direction which had to be complied with. The respondent's employees, including Johnston, did not have to divine for themselves what their obligations were: they were laid out as directions from their employer. Thus, although I do consider that it would be artificial to treat Johnston's common law breach separately from his breach of the policy, I also take the view that the terms of the policy added to the importance of the obligation in question and, objectively, ought reasonably to have been so understood by an employee in Johnston's position. 185 Combining the reasons just given with the applicants' concession noted in para 147 above, and the conclusion expressed in para 162 above, it follows that the respondent was entitled to dismiss Johnston summarily on account of the two matters alleged against him on 6 April 2013.

Affirmation? 186 The applicants submitted that, if Johnston had engaged in conduct that justified his summary dismissal, by its conduct after 8 August 2013, or 11 December 2013 at the latest, the respondent elected to affirm the contract, a position from which the law would not permit it subsequently to resile. 187 The nature of the obligation of a contracting party in a position like that occupied by the respondent between August 2013 and January 2014 has been stated a number of times over the years. It will be sufficient to refer to the following statements of principle. In O'Connor v SP Bray, Ltd (1936) 36 SR (NSW) 248, 261-262, Jordan CJ said: [W]here there has been no intimation of avoidance, the question whether delay, after knowledge of the facts giving rise to avoidability, or things said or acts done during the delay, constitute such an election to go on with the contract as puts an end to the right to avoid, depends upon "the length of the delay and the nature of the acts done during the interval, which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy": Lindsay Petroleum Co. v. Hurd (L.R. 5 P.C. 221 at 240). In Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26, 30, Brennan J said: An act amounting to an election must be unequivocal. [Reference omitted] Where a contract can be terminated at the option of a promisee, the right to terminate is not necessarily lost by the promisee doing any act consistent with the continuance of the contract. If the act is also consistent with the reservation of a right to terminate in certain events, the right to terminate is not lost by the doing of the act. In Sargent v ASL Developments Ltd (1974) 131 CLR 634, 656, Mason J said: A person confronted with a choice between the exercise of alternative and inconsistent rights is not bound to elect at once. He may keep the question open, so long as he does not affirm the contract or continuance of the estate and so long as the delay does not cause prejudice to the other side. 188 In the course of considering the applicants' submission, it will be necessary to return to some of the evidence, not mentioned specifically in the narrative set out above. It was Jena's evidence that he, Ellis and Pastro all had authority to dismiss Johnston. At the meeting on 8 August 2013, Pastro heard Johnston admit that he had advised Bennier to lie to Jotic and herself in their investigative interview on 6 August 2013. Under cross-examination, Pastro accepted that conduct of that kind, in the right circumstances, would justify summary dismissal. In the submission of the applicants, Pastro had enough knowledge on that day to dismiss Johnston, and the respondent's subsequent receipt of Johnston's services as an employee amounted to affirmation on its part. Even 15 August 2013, when Thomson foreshadowed an investigation in his conversation with Jena in Sydney, was too late for the respondent to exercise the right which presumptively arose on 8 August 2013, in the submission of the applicants. The significance of 11 December 2013 was that it was the date when the respondent's management held a meeting to discuss the Papillon draft report of 30 November 2013, that report differing in no material respect from the final report delivered early in the new year. It was said that anything which the respondent did in January 2014 might have been done a month earlier, at which time the respondent had all the information on the basis of which it ultimately purported to dismiss Johnston from its employ. 189 In Pastro's evidence-in-chief, when asked why, confronted with Johnston's admission on the Bennier denial point on 8 August 2013, she did not immediately move to discipline him, she said: The meeting … was just out of the norm. It wasn't the sort of meeting that would occur where we had both union members and the secretary of the Union there openly discussing things in front of us. … [Johnston] had no idea that meeting was even going to occur. And so, therefore, he came to it and was pretty much unprepared for it. I will say [Schleibs] - the same thing, he wasn't expecting, you know, to be attending a meeting like that. It was a very emotional meeting as well; you know, lots of people airing their frustrations. So I'm going to say that if I looked at trying to use dismissal through that meeting, that would have been totally unfair. [Johnston] really hadn't had any opportunity to prepare or [think] about what was being said. It was a very open meeting. And I don't think that would have been a good process for us to do that. Pastro, apparently an habitual note-taker, said that she did not take notes on this occasion because "if I opened my notebook and start[ed] taking notes, people may get a little worried about it. It - this was not a meeting that I expected would be as open as what it was." 190 In the context of the purpose, and the dynamics, of the meeting on 8 August 2013, it would, in my view, be unrealistic to expect the respondent to have acted only upon Johnston's admission as a basis for dismissing him, or even for sending him a show-cause letter. As Johnston and Schleibs stressed in their evidence, it was not the purpose of the meeting to deal with the Bennier denial matter. That subject came up incidentally. And, at that time, Bennier was still denying that he had made the comment about Coombe and Templar at all. No finding had been made against him in that area. Johnston's admission made the picture a most confusing one, to say the least. I would not hold it to amount to an election to affirm for the respondent to have wanted to resolve the whole truth about the Bennier denial matter, before addressing the Johnston dimension of that matter. 191 The meeting of 8 August 2013 was indeed concerned with an allegation against Johnston, but it was a different one - that he had called Bowker a "fucking lagger". He denied that. In that area, the position which confronted the respondent involved one employee's word against that of another. This ground could not, at that time, have been used to justify Johnston's summary dismissal. It is true that, strictly, the respondent did not need the belt (of the lagger invective) as well as the braces (of the Bennier denial) in this regard, but, in a situation in which multiple apparent grounds for disciplinary action against the same employee present themselves contemporaneously to his or her employer, I would hold it not to amount to an affirmation of the contract for the employer to choose to address all grounds, even if that involves some kind of an investigation or other process, rather than forthwith acting upon whichever of the grounds may be established then and there. 192 Although the meeting on 8 August 2013 concluded with a proposal, by the respondent's management, that Bennier should be required to apologise for what he had said about Templar and Coombe, insofar as that proposal assumed that Bennier had said something for which he ought to apologise, that assumption was necessarily provisional, since Bennier's only statement to management on the subject had been to deny it. That explains the second of the six matters referred to by Jotic in the passage set out in para 67 above: it was necessary first to have a meeting with Bennier. As Pastro put it in her evidence, it was necessary to speak to Bennier, "so that we could get the story from him that was the truth." In the position in which the respondent found itself, there was every reason for the respondent to have the facts of the matter bolted down at the Bennier end, as it were, before considering what should be done about Johnston. 193 Bennier's meeting with management on 13 August 2013 was important, in two respects. First, he admitted having made the offensive comment about Templar and Coombe. By then, having spoken both to Bowker and to Johnston, Bennier may have thought that he had little choice but to do so, but he was also following the advice of Schleibs. And secondly, he told the management representatives that his delegate had advised him to deny having made the comment. It was at this point, in my view, that the respondent was first in possession of information from which a credible, and complete, charge of misconduct might have been laid in relation to Johnston's advice to Bennier to make that denial. 194 Had the story finished there, the inference that the respondent had elected to take no further action against Johnston might, by January 2014, have been a compelling one. However, the story did not finish there. Only two days later, on 15 August 2014, Thomson decided that an investigator should be appointed, and told Jena so. In the light of that decision, it could not be said that an election to affirm should be inferred from such ostensible signs as there were of inaction on the part of the respondent. It is true, as counsel for the applicants stressed, that Thomson's intended course of action was based on what he had been told by Bowker and Coombe when they visited him on that day, rather than on anything that the respondent's Melbourne management had urged upon, or even suggested to, him. Indeed, they had not even informed him of the problems with which they had been dealing since 6 August 2013. But that is a distinction without a difference: the fact is that Thomson, in effect, announced his intention to act in terms which were inconsistent with the affirmation of Johnston's contract. 195 It is also true that time was then allowed to pass to an extent that did not befit the important subject matter of the proposed investigation. But the present question is not whether the respondent acted reasonably, nor even whether Johnston had grounds to assume, from what was known to him, that the respondent was going to take no further action on such misconduct as he might have engaged in. The question is whether it may be inferred from the respondent's conduct - including its inaction, to the extent relevant - that it did elect to affirm. The hiatus in activity between 15 August and 12 September 2013 was not, in my view, sufficient to require that question to be answered in the affirmative. 196 It was on 12 September 2013 that Thomson sent the email to Pastro to which I have referred in para 89 above. Albeit with less expedition than would have been ideal, the respondent then moved into the process of locating a suitable investigator, of briefing the investigator and of allowing the investigator to conduct the necessary interviews. 197 The fact that an external investigator was engaged reflected, in my view, two significant, and unusual, aspects of the situation which then confronted the respondent. First, this was a complex situation, involving not only the allegations against Johnston but also the bullying issues which Coombe and Bowker had raised. It was not a conventional inquiry into a single employee's isolated act of misconduct. Secondly, representatives of management themselves were likely to be required to give evidence in the investigation, as was ultimately the case: both Pastro and Jotic were interviewed by Hellard. By their participation in the meeting on 8 August 2013, they had become witnesses as well as managers. Thirdly, save in respect of evidence coming from that meeting, insofar as the investigation related to Johnston, none of the primary facts had occurred within the sight or earshot of any foreman, supervisor, or representative of management. Although done on the respondent's premises and in the respondent's time, the misconduct alleged against Johnston was witnessed only by other stevedores. There was, therefore, a need for management itself to establish the reliability of the primary facts which had been reported to it. And fourthly, it would have appeared to management, and it was the case, that there would, in some important respects at least, be direct conflicts in the testimony which was likely to be given by various employees. 198 That brings me to the delivery of Papillon's draft report on 30 November 2013, and to the meeting of management representatives on 11 December 2013. As noted above, it was on the latter date, the applicants submitted in the alternative, that the respondent, by its failure to act on the draft report, elected to affirm Johnston's contract. That submission must be rejected. The delivery of a draft report gave the respondent no more than something to think about. Because the report was not final, the investigation process was incomplete. Jena so viewed the matter. It was stressed on behalf of the applicants that, in point of substance, the final report of 7 January 2014 did not differ from the draft report. Neither it did, but the facts which would have enabled such an observation to be made did not come into existence until receipt of the final report. On the facts as they existed on 11 December 2013, only a draft report had been delivered. 199 On the facts of the present case, I would hold that the respondent did not affirm Johnston's contract of employment at any time before it terminated it by dismissing him on 28 January 2014. It follows that the applicants' wrongful dismissal case must be rejected.

The applicants' case under Pt 3-1 of the FW Act 200 The applicants rely on ss 340 and 346 of the FW Act, which provide as follows: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4‑1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4‑1). 346 Protection A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). Note: This section is a civil remedy provision (see Part 4‑1). 201 For the purposes of s 340, what is a "workplace right" is given content by s 341(1) as follows: 341 Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. Paragraph (b) of this subsection is given further elaboration in subs (2), but nothing in the facts of the present case requires consideration of that provision. 202 For the purposes of s 346, what amounts to engaging in industrial activity is given content by s 347 in terms which include the following: A person engages in industrial activity if the person: …. (b) does, or does not: (i) become involved in establishing an industrial association; or (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or (iv) comply with a lawful request made by, or requirement of, an industrial association; or (v) represent or advance the views, claims or interests of an industrial association; or (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or (vii) seek to be represented by an industrial association…. 203 When it dismissed Johnston from its employment on 28 January 2014, the respondent took adverse action against him within the terms of item 1(a) in the table to s 342(1) of the FW Act. The applicants allege that that action was taken - (a) because Johnston was an officer of the Union, thereby contravening s 346(a) of the FW Act; and/or (b) because Johnston exercised, or proposed to exercise, a workplace right, thereby contravening s 340(1)(a)(ii) of the FW Act; and/or (c) because Johnston engaged, or proposed to engage, in industrial activity, namely, representing or advancing the views, claims or interests of the Union, and participating in a lawful activity organised or promoted by the Union, thereby contravening s 346(b) of the FW Act; and/or (d) to prevent the exercise of a workplace right by Johnston, thereby contravening s 340(1)(b) of the FW Act. As I shall mention below, the applicants did not rely on the events of 6 August 2013 as constituting the exercise of the rights, or as engaging in the activities, referred to. 204 If the applicants make good their case that Johnston was a delegate, and/or that he had exercised, or proposed to exercise, a workplace right and/or that he engaged, or proposed to engage, in industrial activity, it is for the respondent to prove that it did not dismiss him because of that circumstance, or those circumstances: FW Act, s 361. Further, it will be sufficient for the applicants if one of the reasons why Johnston was dismissed was proscribed by the FW Act: s 360. The result is that it is for the respondent to prove that none of the reasons upon which it relied for Johnston's dismissal was a reason alleged by the applicants. 205 It is common ground that, at the time of his dismissal, Johnston was a delegate, and therefore an "officer", of the Union for the purposes of s 346(a) of the FW Act. It was submitted on behalf of the applicants that the reach of this provision extended beyond mere status and encompassed also activities undertaken by such a delegate in his or her capacity as such. They relied in this regard on the judgment of Gray and Bromberg JJ in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212, 223-224 [37]-[40]. It was submitted that their Honours' observations should be given weight and followed, notwithstanding that they are not binding on the court as presently constituted: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. If required to consider this submission, I would be disposed to take the same view as I did in Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195, 214-216 [51]-[53], notwithstanding that that judgment too has subsequently been reversed: see BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 314 ALR 1. I do, however, take the view that the present case may, and should, be resolved without reference to this area of legal discourse. That is to say, as will appear below, no difference is made to the outcome of the case by taking the wider, rather than the narrower, view of the scope of the "officer" aspect of s 346(a). 206 For the purposes of s 340(1)(a)(ii) of the FW Act, the applicants relied on cl 9.2.1 of Part A of the enterprise agreement, which provided as follows: Employees of the Company are employed to carry out work for which they are engaged in accordance with their contract of employment and the terms and conditions of this Agreement, the Company recognises the right of the Union to appoint Employees of the Company and the right of such Employees to represent their fellow Employees subject to the provisions of the clause 9.2.2. It is not disputed by the respondent that this provision gave Johnston an entitlement, and a role or responsibility, as delegate, to represent his fellow employees. Giving flesh to these statutory bones, the facts upon which the applicants here relied were that Johnston was, over the period leading to his dismissal, an active member of the representative committee, he had recently been chairman of the committee and was, at the time of his dismissal, vice-chairman. The applicants pointed to two issues of significant contention, in the prosecution of which Johnston had taken a leading role: shift extensions and rostering. I shall return to them presently. Johnston had also been an employee representative in the negotiations for so much of the enterprise agreement as applied only at the terminal, and for so much of it as had national application. Finally in this area, the applicants pointed to Johnston's ongoing role in dealing with management on miscellaneous subjects of concern to employees individually or collectively. In all of these areas, the fact of Johnston's role was uncontroversial, but, in a number of respects, the applicants submitted that the evidence went further and demonstrated that, in performing this role, Johnston was so persistent, and so determined, that the stage had been reached where management, and Jena specifically, would have welcomed an opportunity to be rid of him. I shall return to the detail of this evidence below. 207 For the purposes of s 346(b) of the FW Act, the applicants relied on subparas (iii) and (v) of s 347(b). They submitted that Johnston participated in a lawful activity organised or promoted by the Union, and that he represented or advanced the views, claims or interests of the Union. Here, the facts relied on were Johnston's involvement, on behalf of the Union, in the negotiations which led to the making of the enterprise agreement. Again, it is uncontroversial that Johnston was so involved, the area of contention being whether his conduct in that activity was sufficiently aggravating to the respondent's management that they would have looked for the opportunity to bring his employment to an end. 208 The applicants relied also on so much of s 346(b) as involves someone proposing to engage in industrial activity, in which respect they point to Johnston's intention, which is also uncontroversial, to be part of the Union's bargaining team for the new agreement to replace the enterprise agreement and which was to be negotiated in 2014. In respect of rostering in particular, it was submitted that the respondent had a reason to prefer not to be sitting across the table from Johnston in those negotiations. 209 For the purpose of s 340(1)(b) of the FW Act, the applicants relied on the prospective operation of s 341(1)(a) and (c)(ii). It was submitted that Johnston was dismissed to prevent him from acting as a representative of employees in the negotiations for the new agreement, and to prevent him from making complaints and inquiries in relation to his employment. 210 Save in respect of the forward-looking dimension of s 340 to which I have just referred, all of the facts and circumstances upon which the applicants relied as foundations for the respondent's decision to dismiss Johnston are uncontroversially established in the pleadings, in the evidence, or in both. The debate then moved to the issue of great controversy, namely, whether any one or more of those facts and circumstances was or were included in the reasons for the dismissal. At this level of the case, it will not be sufficient merely to note the existence of the facts and circumstances: it will be necessary to examine what they amounted to in the dynamics of the conduct of industrial relations at the terminal. Before doing so, however, I must commence by identifying the person or persons who, on behalf of the respondent, made the decision to dismiss Johnston from his employment. It is his, her or their reasons that will be picked up by ss 340 and 346 of the FW Act.

Identifying the decision maker 211 In his evidence-in-chief, Jena said that he made the decision to dismiss Johnston, and that he did so after meeting with him on 28 January 2014. He adhered to that evidence under probing cross-examination, although, I would add, that cross-examination extracted the additional information that, before that meeting, and from his reading of the Papillon final report, Jena had given thought to the prospect that Johnston would be dismissed. Jena denied that anyone else shared with him the responsibility for deciding that Johnston's employment be terminated. Pastro, the only other person who both was present at the point of Jena's ostensible decision-making on 28 January 2014 and gave evidence, also said that it was Jena, and Jena alone, who decided to dismiss Johnston. 212 Counsel for the applicants urged me to reject the evidence of Jena and Pastro in this regard. Although no specific attack was made on Pastro's credibility, it was submitted that Jena's evidence that he was the only decision-maker should not be accepted. It was put that his evidence with respect to the teleconferences of 11 December 2013 and 20 January 2014, and to his telephone conversation with Hulme on 28 January 2014, was "scripted and formulaic". The first aspect of this criticism involves a particularly serious accusation which was not put to Jena. I saw no suggestion of a script in the way he gave his evidence. The latter aspect of the criticism does, I consider, involve all manner of assumptions about Jena's style of question-and-answer interchange, particularly in the very formal setting of a courtroom, where he was obliged to tell the truth and only the truth. I know nothing of Jena save what I saw and heard in the witness box. He was very careful in providing his responses to the questions which were addressed to him, and generally said no more than each question required. These qualities are usually applauded in a witness. I could not assume that, in his natural state, he is a more garrulous and outgoing individual than he appeared to be in court. Save in some specific respects to which I refer below, Jena's evidence was credible, both in its content and in the manner of its giving. On the matter of the identity of the decision-maker in relation to Johnston's dismissal, that evidence was neither more nor less than would be expected in the case of a company involved in the resolution of allegations of serious misconduct on the part of a senior delegate in a strongly unionised workplace: that the responsibility for making the decision would fall upon the shoulders of the general manager at the relevant workplace. 213 The applicants submitted that Jena, Pastro, Hulme, Thomson, Blomfeld, Scurrah and Raj were all decision-makers. In their written outline, counsel submitted that "the evidence establishes that the decision to dismiss was the product of a decision-making process undertaken by them at least in the period between 11 December 2013 and 28 January 2014". That ambitious submission must be rejected. In the first place, of these seven people, only Jena and Pastro had the authority to dismiss an employee of the respondent. That is not to gainsay the possibility that senior managers in the national company might have exercised influence over the actual decision-maker, but that is another issue. At the point of making the actual decision to dismiss, it could only have been Jena or Pastro who acted on behalf of the respondent. 214 In the second place, the evidence does not establish, in point of fact, that there was a "decision-making process" in which all these people participated. They were never all present together at any teleconference, although all save Hulme participated in such a conference on 11 December 2013 and all save Raj did so on 20 January 2014. I accept what was implicit in much of the applicants' cross-examination of the respondent's witnesses that it was unusual for such high-level meetings to be convened to discuss the alleged misconduct of a single employee. But this was an unusual case, not only because Johnston was a delegate of the Union. The respondent had commissioned a report by external investigators which dealt with a serious and sensitive subject. The circumstances under which Thomson had originally found out about the problems of bullying and harassment at the terminal were strikingly out of the ordinary. And Johnston's position as delegate raised the prospect that any disciplinary action taken against him might have industrial repercussions, a circumstance which would warrant caution on the matter, and give senior staff of the national company a reason to keep themselves informed on any relevant discussions. 215 The applicants submitted that it was at the teleconference on 11 December 2013 that it was decided that Johnston should be dismissed from his employment. That submission too must be rejected. I have referred to this meeting at para 96 above. On any view the contents of the Papillon draft report - which provided the occasion for the holding of the meeting - raised serious questions about the conduct of Johnston, and it is an obvious inference from Thomson's email of 12 September 2013 that he considered that dismissal was squarely in the frame as a potential outcome. The seriousness of the matter was reflected in the attendance at the meeting. But it would be another thing altogether to find that a decision was made, then and there, that Johnston should be dismissed from his employment. The evidence is to the contrary and, although only two of the participants did give such evidence, and only one of them, Pastro, had any useful recollection what was then discussed, that evidence is strongly consistent with the context. The respondent had just been provided with a draft report: although we now know that the final report was substantially identical to the draft, the participants at the meeting on 11 December 2013 knew only that they had a draft report. If in other respects a final decision might have been made by a meeting of this kind, it is unlikely to have been done on the basis of a draft report. Further, although Jena was unable to recall much of the actual discussion at this meeting, his preoccupation with the need to obtain the final report would, in my view, have made him very sensitive to any suggestion by others at the meeting that it should, then and there, be determined to dismiss Johnston from his employment. He would have remembered that. 216 From that position, the applicants advanced a number of alternative arguments which proposed the involvement of managers additional to Jena in the decision to terminate Johnston's employment. Save with respect to Pastro, Thomson and Hulme, to whose specific situations I shall refer presently, this proposition amounted to little more than surmise. As I understand the argument, the starting point is the attendance of the managers in question at one or other, or both, of the meetings of 11 December 2013 and 20 January 2014. From there the applicants focussed upon something said by Jena in his evidence-in-chief. Apropos his consideration of the question of dismissal during the break in the meeting on 28 January 2014, Jena was asked by counsel for the respondent what he meant when he said (as he had) that he "put all the facts that were present in front of [him]". His answer was that he had read the details of the investigation, had had an interview with Johnston, had been told that there was nothing new presented at the interview, and "my decision to terminate … Johnston would stand." Counsel for the applicants seized on this as indicative of there having previously been a decision by Jena to terminate Johnston's employment. Jena was cross-examined along those lines, and gave the response which I have set out at para 109 above. 217 In argument, Jena's evidence that his decision to terminate Johnston "would stand" was deployed in support of a submission that the decision to dismiss Johnston had been made before 28 January 2014, subject only to anything that Johnston himself might say at interview. This was said to undermine Jena's evidence that he made the decision during, and not before, the break in the meeting on that day. I do not accept that. It involves too pedantic an approach to the actual terms which Jena used in chief. Perhaps those words required clarification, and clarification they got when the subject was revisited in cross-examination. As so clarified, Jena's evidence is consistent with him having made the decision to dismiss Johnston on 28 January 2014, not before. 218 I would only add that, however this controversy as to the internal consistency of different passages of Jena's evidence be resolved, I cannot see how it alters what would otherwise be the picture apropos the involvement of other managers in the decision he made. 219 Finally in support of their submission that the decision to dismiss Johnston was a collective one, the applicants pointed to Pastro's evidence that, when the dismissal was announced after the break in the meeting on 28 January 2014, Jena told Schleibs that he was "just delivering an outcome" and that he might have said that he was "the messenger". In this regard, counsel for the applicants invited me to prefer this evidence to Jena's denial at both levels. No submission was made that I should prefer the evidence of Schleibs to that of Pastro. Given the latter's inability to recall any mention of the word "messenger", and given Jena's denial of having used that word, Schleibs' professed recollection that the word was used must be approached with some care. What troubles me particularly about Schleibs' evidence on this point is that it was not given in chief: indeed, as noted above, Schleibs said nothing in chief about this conversation at all. Oftentimes the truth of some hitherto unmentioned circumstance comes out in cross-examination (as has been the case a number of times in this proceeding). But Schleibs was not just any witness: he was the Deputy Secretary of the relevant branch of the Union. On any view, I am entitled to infer that he was keenly alive to the significance of identifying the true decision-maker in the facts of the case. Had he in fact recalled that Jena said that he was no more than a messenger, it is most unlikely that he would not have told his legal advisers about it, so that they might procure him to give the relevant evidence-in-chief. In the circumstances, I do not accept the truthfulness of this evidence which he first gave under cross-examination. I do not find that Jena said that he was a, or the, messenger. 220 On the other hand, I do find that Jena said that he was "just delivering an outcome". I accept Pastro's evidence in that regard, and I reject Jena's denial. But I do not accept either that Jena thereby conveyed, or that he intended to convey, to Johnston and Schleibs that it was not he who had made the decision to dismiss. Here the context in which the comment was made is significant. As led during her cross-examination, Pastro agreed that this comment was made in response to Schleibs' challenge to the fairness of the decision to dismiss Johnston. As I would construe the comment in that setting, Jena meant, and was reasonably understood as meaning, in effect, that his decision had been made and that no further correspondence would be entered into. That is, the time had arrived at which the only thing left for him to do was to deliver the outcome. 221 For the above reasons, I conclude that the decision to dismiss Johnston was not a collective one made on or at some time after 11 December 2014. 222 That conclusion takes Blomfeld, Scurrah and Raj out of the frame completely: there was nothing in the evidence to suggest that, in some other way, one of these managers had anything at all to do with that decision. That leaves Pastro, Thomson and Hulme, each of whom had some proximity, either in person or by correspondence, to the events which led to Johnston's dismissal. 223 Commencing with Pastro, at para 114 above, I have referred to the extent and nature of her participation in the meeting with Jena and Ellis in Jena's office in the break in the meeting on 28 January 2014. In short, she assisted Jena with an understanding of the options which were open to him, but she did not advise him, or make a recommendation. She had the authority to dismiss Johnston, of course, but on this occasion the exercise of that authority, if it were to be exercised, rested in the hands of the manager to whom she reported, Jena. Over the course of the meeting, it became apparent to Pastro that Jena was favouring the dismissal option, but, according to her evidence-in-chief, the first time that she learned that Johnston's employment would be terminated was when Jena so informed Johnston. Pastro said that it was Jena who made the decision to dismiss Johnston summarily. Under cross-examination, she rejected the suggestion that she had, at some point in the meeting, made known her view that dismissal was an appropriate course of action in the circumstances. 224 The evidence is wholly bereft of any indication that Pastro was a decision-maker, with Jena, in relation to Johnston's dismissal. While she was under cross-examination, it was never put directly to her that she was. In this state of the evidence, the only available finding is that she was not. 225 Turning next to Thomson, it was submitted on behalf of the applicants that he "had a particularly significant role as a decision-maker in the process which led to the dismissal of Johnston" and that he "played a central and determinative role in the decision to dismiss Johnston". In support of that submission, counsel for the applicants referred to Thomson's overarching national responsibility for all human resources matters, to his direct involvement in receiving, considering and acting upon the complaints made by Coombe and Bowker, to his subsequent contact with them or one of them, to his email of 12 September 2013, to his participation in the meetings of 11 December 2013 and 20 January 2014 and to his email of 17 January 2014. The present is not a case, however, in which there is no direct evidence of how, when and by whom the decision to dismiss an employee was made, and it would be necessary to decide the matter by inference from indirect indications. In such a case, the respondent's failure to call someone in the position of Thomson might well have left open the inference that he was a participant in the making of the decision. But here there is evidence of those matters, and the evidence on which the applicants rely to contend for participation by Thomson in the decision-making process is not inconsistent with that evidence. That is to say, all of the matters to which the applicants point can be sensibly accommodated with Jena's evidence that he alone was the decision-maker, to the exclusion of Thomson. Those matters do not undermine that evidence. 226 I accept that Thomson's position in the national company gave him an "overarching national responsibility for all human resources matters". That, and the other circumstances referred to above, obviously made him determined to have the complaints raised by Coombe and Bowker, and the conduct which those complaints had revealed, investigated. I accept that his position effectively gave him authority to require Pastro to establish such an investigation. In any event, that is what he did. I also accept that, at the point where it was only the complaints which he had before him, he expressed (and therefore may be inferred to have held) the view that the "strongest disciplinary action available" should be taken if the complaints against Johnston specifically were found to be "true". Counsel for the respondent were unable to identify anything other than dismissal that might have been conveyed by these words. But to say that someone should be dismissed if found to have transgressed in a particular way is a very different thing from deciding that such a person should in fact be dismissed in a concrete situation. In my view, in this email Thomson was expressing his strong provisional opinion, but not making a decision, on behalf of the respondent, that Johnston would be dismissed in defined circumstances. 227 I have already dealt with the meeting of 11 December 2013, there being no particular reason to single out Thomson who, more so than the other participants, might then have made the decision to dismiss Johnston. Then there was Thomson's own email of 17 January 2014. On any view, that was a statement to Pastro, and to the other recipients of the email including Jena, that he favoured the termination of Johnston's employment. But this is a different thing from Thomson participating in the decision to effect that termination. Indeed, given Thomson's indirect, albeit overarching, responsibility for human resources matters, it would be natural to expect him to make his views known on what should be done about Johnston in response to the Papillon final report. He might even expect that those views would be taken into account. That is to say, everything to which the applicants have pointed with respect to Thomson's contribution, even his email of 17 January 2014, is consistent with the decision having been made by Jena alone. Nothing which passed at the meeting on 20 January 2014 would alter that conclusion. 228 It is as clear as it may be that the final deliberative step in the decision to dismiss Johnston was made during the break in the meeting with him and Schleibs on 28 January 2014. Thomson was not present at that meeting, and was not consulted by telephone. Only then was Jena in possession of Johnston's response to the charges laid against him in the respondent's letter of 24 January 2014. He knew then, but only then, that those responses took Johnston's defence no further than might have been anticipated beforehand. It was only after those responses had been received that a final decision one way or the other could be made. There is no suggestion that Thomson had any relevant communication with Jena - either directly or via Pastro - on that occasion. At most, Jena might have been influenced by Thomson's previously-expressed view (something which Jena denied, and to which I turn below): there could be no suggestion that Thomson was a decision-maker as such. 229 Finally in this part of my reasons, I turn to Hulme. It was argued on behalf of the applicants that I should find that, in the conversation on 28 January 2014 in which Hulme was involved, his comment that Jena did not have "any other choice" was made before Jena had finalised his own personal consideration of whether Johnston should be dismissed. I have so found. It follows, according to the applicants, that Hulme thereby made himself a decision-maker, along with Jena. This argument was, of course, inconsistent with the applicants' case that the decision to dismiss Johnston had been made at the meeting on 11 December 2013, or at some time between then and 28 January 2014. However, it was an argument put in the alternative, and must be considered. 230 I do not accept the applicants' proposition. I do accept that Hulme's comment made Jena privy to his opinion. In the absence of evidence from Hulme, I would have no hesitation in inferring that the comment referred to the termination of Johnston's employment. Jena could have been left in no doubt but that Hulme considered that he, Jena, did not have any other choice but to dismiss Johnston. But that did not make Hulme a decision-maker. It was Jena, after all, who did not have any other choice. The context in which the comment was made was one in which it was Jena who was on the spot and had to make a decision on behalf of the respondent. He did not need Hulme's approval for a decision to terminate Johnston's employment and, although he clearly thought that Hulme should be consulted, there is no suggestion, either in the dynamics of the occasion or in any specific evidence given, that Jena thereby shared the decision-making function with Hulme. 231 For the above reasons, I find that the person who decided that Johnston should be dismissed from his employment was Jena, and no-one else. He made that decision during the break in the meeting on 28 January 2014.

Why was Johnston dismissed? 232 It follows from my findings above that it is to Jena's reasons that one must look in the inquiry whether the respondent has discharged the onus of showing that Johnston was not dismissed because of one or more of the facts and circumstances upon which the applicants relied under Pt 3-1 of the FW Act. Before embarking on that inquiry, I should make three things clear by way of preliminary. The first is that this is a case in which a single human functionary made the decision in question, and he did so without the need for any antecedent recommendation or subsequent approval. That is not to say that he may not in fact have taken the advice of others - a subject to which I shall turn - but it is to stress that, as a matter of authority, he required no such advice. 233 The second thing is that, on any view, in the deliberative path that Jena followed to make his decision to dismiss Johnston, the Papillon report was crucial. It provided the factual foundation for Jena's conclusion that the grounds for dismissal had been made out. That report contained no recommendation that Johnston should be dismissed from his employment. In both relevant areas of conduct, Papillon's recommendation was simply that the respondent "obtain advice on an appropriate course of action". Notwithstanding that, Hellard, who was called by the applicants, gave no evidence in chief that his own conclusions were based to any extent on any of the facts and circumstances on which the applicants relied under Pt 3-1, and, when taken sequentially through each of those facts and circumstances by counsel for the respondent in cross-examination, he denied that the comments and findings in his report were based on it. In their final submissions, counsel for the applicants placed no reliance on the Papillon report as the source, or possible source, of any "reason" that might place the respondent in breach of s 340 or s 346. 234 The third thing is that the applicants did not allege that, if the court should find that Johnston had engaged in either or both of the instances of misconduct for which he was ostensibly dismissed, those instances themselves came within s 340(1)(a)(ii) or s 346(b) of the FW Act. That is to say, this is not a case, like Barclay, in which the question arises whether something for which an employee has been dismissed constituted the exercise of a workplace right or engaging in industrial activity. Save with respect to one possible aspect of their allegations made in reliance on s 346(a) of the FW Act, the circumstances upon which the applicants rely under Pt 3-1 of the FW Act are quite separate from the misconduct for which Johnston was ostensibly dismissed. 235 Turning then to Jena's decision to dismiss Johnston, he gave evidence in chief that he "dismissed [Johnston] under a breach of the [respondent's] code of conduct for advising an employee to lie during an investigation and the breach of the bullying and harassment policy or for bullying an employee at the terminal". Jena was here referring to, and in dismissing Johnston had been relying on, the code of conduct which appeared in the DPW Handbook and certain provisions of the Discrimination etc Policy. As mentioned earlier in these reasons, the DPW Handbook came into operation only in September 2013, that is, subsequent to the conduct for which Johnston was ostensibly dismissed. But, according to Jena's evidence-in-chief, he would have made the same decision as he in fact made had he been proceeding under the provisions of the P&O Handbook. Revisiting this subject at the end of his evidence-in-chief, Jena said in answer to the question why it was necessary or desirable for him to dismiss Johnston in January 2014: Well, … it was clear to me … on two items. One, in asking Mr Bennier to lie during a legitimate investigation, that it was a serious breach of our code of conduct. And in the verbal exchange that he had with Sharon Bowker, that that was very demeaning to a person in front of others, and it was a breach of our harassment and bullying policy. 236 Jena denied that his decision was based on any one or more, or any combination of, the facts and circumstances relied on by the applicants. Perhaps those denials were formally made, but, in a case such as the present where the facts provide a conspicuous reason for the adverse action which has been taken to the apparent exclusion of all the reasons prohibited by the statute, and yet where the respondent still bears the onus of proof under s 361, that was nigh inevitable. In chief, there was little that Jena could say about the prohibited reasons save to deny that they were, in his mind, reasons for Johnston's dismissal. 237 From that point, the argument moved to the question whether Jena's denials should be accepted. That they should not be was, necessarily, a major component of the applicants' case. 238 Ostensibly, Johnston was dismissed for the reasons set out in the respondent's letter to him of 10 February 2014. There was no suggestion that they did not reflect the reasons that had been stated by Jena at the meeting on 28 January 2014 when the dismissal was done. The reasons also reflected the accusations levelled against Johnston in the respondent's letter to him of 24 January 2014. Those accusations, in turn, were based upon the Papillon final report of 6 January 2014, and that report was substantially identical to the draft which had been provided on 30 November 2013. That draft was the outcome of an investigation the scope of which had been set by late September 2013, and which had first been foreshadowed by Thomson's conversation with Jena on 15 August 2013. The events which led to the holding of the investigation were those which occurred at the terminal on 6 and 8 August 2013. 239 There was nothing in those events, nothing in the documentary record to which I have referred, and nothing in the dynamics of the relationship between Johnston and the respondent which would provide any sustenance for the applicants' case that any of the prohibited reasons was involved in Jena's decision to dismiss Johnston from his employment. From that starting point, I turn next to examine the particular circumstances of the case that, in the submission of the applicants, demonstrate that Jena's real reasons were not as benign as the respondent would have the court believe. In the course of doing so, more detailed light will be thrown on Johnston's activities as a delegate, member of the representative committee and negotiator in the areas referred to in the applicants' case (see paras 200-210 above). 240 Johnston was, and was viewed by management as, a "dogged and determined delegate" (a description coined by counsel for the applicants which was accepted by Jena and Pastro). Johnston had a high profile in the eyes of management as an experienced delegate who regularly, and at times persistently, raised issues which required to be addressed. As mentioned above, and consistently with his experience and status, Johnston had been an employee representative in the negotiations for so much of the enterprise agreement as applied only at the terminal, and also for so much of it as had national application. It was proposed, and management would reasonably have anticipated, that he would again have performed in these roles in the upcoming negotiations for the next agreement in 2014. It was the applicants' case that, by about the middle of 2013, Johnston's activities in these areas had reached the stage where Jena was hostile towards him on account of his "ongoing activism". 241 The applicants gave content to their allegations as to Jena's hostility towards Johnston by reference to certain specific industrial issues in the prosecution of which Johnston took a leading role. One such issue related to shift extensions. 242 From about 2011, Johnston had, as a member of the representative committee, been a leading voice in favour of implementing what was required under cl 1.8.4 of Part B of the enterprise agreement, namely, "a system of allocation of shift extensions for FSEs which delivers fairness and equity through a points based measure administered over a defined period". This provision - which was once referred to by Jena as the "Mark Johnston clause", presumably because of Johnston's interest in the subject - had been agreed in resolution of an issue about the allocation to particular employees of opportunities for shift extensions, when such opportunities arose for operational reasons. Self-evidently, the allocation to an employee of such an extension would deliver to him or her additional remuneration in the way of overtime pay. But devising a fair system had not, apparently, proved as simple as it may have looked when the agreement was negotiated. Schleibs described the situation which then arose as follows: We had tried to work through the issue but it was coming to a situation where it was starting to be a personal thing between [Jena] and [Johnston] where - you know, the company didn't want to waste any resources to establish the system and [Johnston] and myself were on notice for the members that they wanted a system and it did become, you know, pretty argumentative when we discussed it with management. … [Johnston] would raise this issue where allocation of overtime hadn't been distribute[d] equit[abl]y each day. Day by day you go up to the management and say well, here's the instance here where this certain person shouldn't have done the overtime and has been given it. 243 The issue of devising and implementing a workable system was discussed regularly in representative committee meetings from the commencement of the enterprise agreement down to September 2012. Johnston did a deal of work with Jotic to come up with such a system. Both from his role in the development of cl 1.8.4 and from his interest in the implementation of a workable system, Johnston was evidently recognised amongst the workforce as an authority on the subject. At one point, Jena appears to have made the comment - flippantly he would say, but Schleibs did not so regard it - that if you had a complaint in this area, you should go to "Mark Johnston dot com". The matter was not, however, discussed in the representative committee after September 2012. Johnston's evidence was that he was frustrated by the lack of progress and, at about that stage, he "gave up". Schleibs' recollection of things was consistent with that. 244 Another issue related to a change in the administration of the shift rostering system which the respondent introduced at the terminal in January 2013. The Melbourne-based allocator, whose duties had included the management of employees' requests to work, or not to work, particular shifts, was made redundant. The new system then introduced was, according to Johnston's evidence, computer-operated and responsive, or supposedly responsive, to the dialled-in requests of employees. The actual mechanics of the new system were not described with great clarity in the evidence, but that is of no moment. It is common ground that the change in rostering arrangements was the major industrial relations issue at the terminal at least in the first half of 2013. According to the respondent's evidence, the matter was regularly raised at meetings of the representative committee and in less structured interchanges between delegates and management, both by Johnston and by all the other delegates. Jotic said, in his evidence, that "many, many meetings" were held over this issue. Eventually, it seems, Johnston lost patience with this process of meetings and representations. At a meeting of the representative committee in mid-2013, at which Jena was present, he (Johnston) said, "You can stick your roster. We will wait until the next EBA." This was, and was understood by management as, a statement that the rostering problem would be made an issue at the time of the negotiation of an industrial agreement to replace the enterprise agreement, anticipated in 2014. 245 The other matter to which the applicants referred was not an industrial issue as such, but a comment made by Jena at a meeting of the representative committee. On 21 June 2013, the question arose why a number of the employee members of the committee were not present. It seems that they had not been released from their work. Johnston spoke to Ellis, about this, and Ellis's response, as Johnston put it in his evidence, was that he would "place labour where it seemed fit". That response did not satisfy Johnston, who made this an agenda item for the next meeting, which was held on 16 July 2013. When that item was reached, Jena (who had not been present on 21 June) asked who had raised it. Johnston said that he had, and explained the background of the matter, including making reference to his discussion with Ellis. According to Johnston, Jena got agitated, loud and forceful, saying to Johnston, "Why is there always trouble when it's you, Mark? Why never Doc?". The "Doc" referred to was another senior delegate at the terminal. Johnston's response was, "Well, Doc hasn't been here for six months. You're hardly ever at a meeting, Andrew, and we haven't had any problems." He added that Jena's comment was a form of bullying and, according to his (Johnston's) evidence, he notified Ellis that he would "make it official", and "place him in breach of the agreement." Johnston explained (in his evidence) that he made the matter "official" by having it minuted, but, so far as I can see, the minutes of the meeting, while noting the issue and the discussion, do not refer to Jena's comment or to Johnston's response. No formal complaint was lodged. Notwithstanding those circumstances, I accept Johnston's evidence on this point, at least as a broad characterisation of the nature and content of the exchange referred to. To the extent that that evidence was not concurred in by Jena and Pastro (who were also at the meeting), it was clear to me that their recollections were not as sharp as Johnston's. 246 These issues and events provided the background for a submission made by counsel for the applicants in the following terms: So the picture that emerges … is a delegate of long standing with a history of activism in the workplace, and who represents members on a daily basis and who, by the middle of 2013 is, to use a colloquial term, beginning to get up … Jena's nose, as evidenced by his statement to … Johnston basically accusing him of being a troublemaker at the ERC meeting in July, and at the same time, … Johnston telling … Jena that he could stick his roster. The applicants' case was that, by mid-2013, the previously good working relationship which Jena had with Johnston was beginning to become "strained", or "to deteriorate", and that Jena now regarded Johnston as a "troublemaker" at the terminal. In that environment, something happened in October which gave Jena the opportunity to bring an end to Johnston's employment. 247 That event was the writing of a letter dated 7 October 2013 from the shop committee at the terminal to Jena. The letter was in the following terms: This is to notify you we the DP World Committee have great concerns with the HR Department and terminal operations superintendent for these reasons: • Allocations - we believe permanent labour is being unfairly treated in the irregular component of the roster, also on the D/E part of the roster we believe to alleviate the problems we need a full time allocator to return. • AMP's and Written Warning - we believe as delegates, when representing employees the outcomes of the meetings are pre-determined and our concerns are ignored. • Drug and Alcohol - this is a concern to the committee as there is no option for rehabilitation process, the first option is termination. Andrew, you asked this committee to be active in increasing productivity to gain and maintain contracts. We believe our ability to maintain a content and productive workforce is being hindered by middle managements inability to work constructively with the shop committee regarding the above issues. In the EA clause 3.2 the intent states 'Constructive and Cooperative Approach' but it seems to be all one sided when termination is on top of the company agenda. We now ask you to address these concerns with your management team. This letter was hand-delivered to Jena by Johnston, and either at that time or very soon thereafter they discussed what was in the letter. Although Johnston gave evidence that he commenced a period of leave on 12 October 2013, it was common ground, and the case was conducted on the basis, that this discussion occurred on or about that date. It is also common ground that this was a cordial discussion. 248 In that discussion, according to Johnston's evidence-in-chief, Jena "just brushed … off" the representations made in the letter. Some further elaboration was made in cross-examination. Johnston then agreed that the end result of the discussion was Jena communicating to him that he (Jena) did not think it was accurate to say that the problems referred to were all the fault of management. In chief, Jena said that this letter, and the discussion which he had about it with Johnston, were irrelevant to his decision to dismiss Johnston. Under cross-examination, Jena agreed that the view, or a view, that he expressed in that discussion was that responsibility for the issues being raised in the letter rested also with the delegates. He maintained that he was correct to see the matter in that light, notwithstanding that each of the bulleted items read as though it was a complaint about management, and not as something which could be addressed by the delegates. He denied that he dismissed the letter in the discussion with the words, "That's your responsibility for delegates to attend to some of these matters, not mine", he denied that he dismissed the letter because he was irritated by it, and he denied that he took offence to the complaints in the letter being directed at the management team that he led. 249 In their argument that Jena dismissed Johnston for reasons which included those prohibited by the FW Act, counsel for the applicants placed particular reliance on the letter of 7 October 2013 because of its timing. It will be recalled that, from about mid-October 2013, the focus of the Papillon investigation shifted from securing the return to work of Bowker and Coombe to investigating the allegations made against Johnston (see para 91 above). In the case of the applicants, this shift was the direct result of Jena's receipt of this letter, and of his discussions with Johnston on 12 October. For the reasons which follow, I reject that case. 250 First, I reject the applicants' factual case that, by mid-2013, Jena was irritated by Johnston and would have preferred to have him off the terminal. Whenever the fact of any such irritation, or the like, was put to Jena, he denied it. I recognise, of course, that such denials were very much in the respondent's interests in the litigation, but they were credible and nothing in the evidence otherwise presents any reason to doubt the truth or sincerity of them. The terminal was, self-evidently, a strongly unionised workplace with a long tradition of vigorous trade union representation of employees' interests. It would, in my view, be wholly unrealistic for the court to approach the dynamics of the interactions between Johnston and Jena, or between Johnston and management representatives generally, on the basis that Jena and those representatives expected those interactions to proceed along lines which were not robust and at times argumentative. In that context, and particularly in the light of what appears to have been a satisfactory mechanism for the delegates to air their grievances - the monthly meetings of the representative committee (the minutes of which are in evidence) - those interactions appeared to have been professionally-conducted on both sides. 251 As Johnston put it in his own evidence-in-chief, "I think we have a very good committee and we have a very good working relationship with management". Jena and Pastro agreed with that assessment. Johnston described Jotic as "a lovely guy". He said that he had known Ellis since he (Johnston) started at the terminal, adding that his relationship with him, while sometimes "frosty", was a good one. He said that his relationship with Pastro was good, and that everything with her was "always very official". As to Johnston's relationship with Jena, I set out below a passage from Johnston's evidence-in-chief: Q: To what extent did you have dealings with ... Jena? A: The only time in representing employees to … Jena is when it was serious enough to be termination. So … he pretty much would stay out of that and let middle management handle all those issues. Q: So how often would that occur? A: Rarely. Q: Rarely. And so what were your main dealings with … Jena? In what ways, then, did you have dealings - - -? A: Industrial issues. If there was an industrial issue at work where there was a stoppage, Andrew would come in on ERC committees, on EBA negotiations…. Q: And how would you describe your relationship with him from those dealings? A: Butted head a few times. Q: Butted heads a few times? A: Yes. Not - I've never - never taken it personally. It's what happens. At the end of the day, you both got a job to do but, yes, … we butted heads on a few occasions. That is to say, in an environment in which perspectives and opinions would inevitably differ, Johnston saw his own relationship with Jena as a professional one. 252 Jena agreed with Johnston's assessment of their relationship. He too never took anything that Johnston said to him personally. He never had any issue with the way that Johnston conducted himself at meetings of the representative committee, or as an employee representative generally. Under cross-examination, Jena denied that, by the time he received the letter of 7 October 2013, his previously good working relationship with Johnston was becoming strained, or was deteriorating. I accept that denial. It is strongly consistent with the evidence to which I have referred. 253 Secondly, as at the date of Jena's receipt of the letter from the shop committee, neither of the headline issues upon which the applicants relied in this part of their case had the kind of immediacy that would make that case an attractive one at the inferential level. Johnston had given up on attempting to resolve the shift extensions problem about a year previously. In mid-2013, he had told Jena that he would say nothing more about the roster problem until the negotiation of the next agreement the following year. I appreciate, of course, that the applicants would say that the latter amounted to a reason why the respondent would not want to have Johnston at the table in the negotiations for the 2014 agreement, but it remains the case that rostering, as a live issue, cannot, in the face of Jena's denial, be regarded as most probably something that was playing on his mind in October 2013. 254 Thirdly, there is no suggestion that Jena knew of the change in focus in the Papillon investigation which occurred at about mid-October 2013. He was not involved in the respondent's communications with Papillon, or with the conduct of the investigation at all. The extent of his awareness of the fact and the progress of the investigation was explored carefully and thoroughly by counsel for the applicants while Jena was under cross-examination, and the picture which emerged was of a man who, as general manager of the terminal, had left this matter to Pastro, in consultation with Thomson. Jena was given weekly "updates" on the subject by Pastro, but in very general terms. It was not put to him that he had anything to do with the mid-October change in Papillon's focus. I find that he did not. 255 For her part, Pastro was not aware of the letter of 7 October 2013. When it was shown to her under cross-examination in the present case was the first time she had seen it. In mid-October 2013, Jena did not tell her that Johnston or the shop committee had raised concerns with him about the human resources department, or about allocations, or about "absence management plans" and written warnings. There was, it seems, no communication as between Jena and Pastro, in anything like the time frame that would be relevant to the submission presently under consideration, about the issues raised in this letter. Under cross-examination, Pastro said that she could not remember Jena having asked her to "progress" the investigation in respect of the allegations against Johnston, and there was no evidence otherwise that he did so. 256 For these reasons, I would reject the applicants' factual case that Jena was, in the relevant period, minded to terminate Johnston's employment if an opportunity arose; and I reject their case that the letter of 7 October 2013 presented such an opportunity. In the setting of all of the relationships, events and interactions at the terminal to which I have referred, that case was, I would have to say, not only improbable but highly implausible. 257 So far as Jena's own experiences and interactions are concerned, I would find that, absent the allegations of misconduct against Johnston that arose in August 2013, he had no reason to consider it in the respondent's interests to dismiss Johnston, and he did not in fact want to do so. He was not hostile towards Johnston, and Johnston's delivery of the letter of 7 October 2013 did not make him so. 258 I consider next what might be described as the possible indirect impacts on Jena's thinking apropos his decision whether to terminate Johnston's employment. I refer here to the influence on that thinking that was exercised by others in the respondent's management. At times, the case being conducted on behalf of the applicants seemed to involve the proposition that, if another member of the respondent's management staff harboured a reason to dismiss Johnston that was prohibited by the FW Act, and he or she exercised an influence in the direction of dismissal upon the thinking of Jena, then, notwithstanding that Jena was the only decision-maker, the respondent should be held to have dismissed Jena for reasons which included that prohibited one. The present case is not the occasion to test the limits of that proposition since, on any view, an indispensable requirement of its viability would be that one of the reasons of the actual decision-maker was that he or she had been advised, or similarly influenced, to the course adopted by that other staff member. For reasons which follow, I find that Jena's decision to dismiss Johnston was not to any extent made because of any such advice or influence. 259 A substantial submission made on behalf of the applicants was that Jena had been influenced in his decision by Thomson. Such a submission should, of course, be taken seriously only to the extent that the issue was squarely put to Jena under cross-examination, and it is convenient to commence with that aspect of Jena's evidence. There was no suggestion that Jena had any relevant contact with Thomson between his discussion with him on 15 August 2013 and the teleconference on 11 December 2013. There was no evidence that Jena saw Thomson's email of 12 September 2013. Other than being asked whether Thomson, Blomfeld and Pastro "participated in it to varying extents" in the meeting of 11 December 2013 - and he agreed that they did - and that something that was discussed was "the need for a well thought through plan for managing and communicating outcomes with the MUA" - which he could not recall - the only matter put to Jena about this meeting was that it was discussed at least, and possibly decided, that Johnston should be dismissed - which he denied. I am not here being critical of counsel for the applicants, since their clients were not at the meeting, but the fact is that the evidence from the cross-examination of Jena discloses nothing about Thomson's contribution specifically during that meeting. 260 Jena was cross-examined extensively about Thomson's email of 17 January 2014. Before coming to cross-examination, however, I should mention something which Jena said in chief on the subject. When asked what views Thomson expressed in the teleconference on 20 January 2014, Jena said, "Mr Thomson expressed his views by email before the telephone call …", at which time he was interrupted by counsel for the respondent requiring him to address the terms of the question which had been asked. Jena said that Thomson had expressed no views at the teleconference, but it is tolerably clear that he took Thomson's email of 17 January 2014 as the repository of such views as Thomson held. 261 Under cross-examination, Jena said that he did not interpret Thomson's email, insofar as it stated that the writer was "comfortable in progressing to the termination" of Johnston's employment, as Thomson's "approval for a decision to dismiss" (counsel's words); nor as giving him (Jena) advice in respect of the appropriateness of such a course of action. Indeed, Jena said that, in deciding to dismiss Johnston, he did not take Thomson's expression of opinion into account: "I did not have any regard to his opinion". Neither did he pay any regard to the seven bulleted points set out in this email. It was submitted on behalf of the applicants that this evidence by Jena was not believable, and should not be accepted. 262 There are three matters of context against which this submission should be considered. First, Jena did not report to Thomson; nor was he accountable to Thomson for actions, such as the dismissal of Johnston, which he took in the management of the terminal. This is perhaps only a starting point, but it is, in my view, an important one which should not be overlooked. It is consistent with Jena's direct evidence. 263 Secondly, Thomson's main point of contact at the terminal was Pastro, to whom the email of 17 January 2014 was primarily directed. Although Jena was one of the four addressees, it would not be unreasonable for him to have understood that the email was sent to him for information, rather than for action. In concluding the email, Thomson asked Pastro to keep him "in the loop", after the discussions which were scheduled for the following Monday. These are, most naturally, the words of a person who does not perceive himself to be part of the process, but wants to be kept informed. Jena would have so understood Thomson's words. 264 Thirdly, Jena's own conduct on 28 January 2014 was not that of someone who was influenced by the email. Someone who was so influenced would, in my view, have moved more unhesitatingly to dismiss Johnston than Jena did. From all of the evidence, including that of Pastro who was present when Jena was deliberating, I got the strong impression that Jena well understood the gravity of the matter upon which he was required to make a decision, and he well understood that the decision was his and his alone to make. He was assiduous to line up the conduct alleged against Johnston with the respondent's code of conduct and policies as he understood them, and he did this not by reference to Thomson's bulleted list, but by reference to the matters of which Johnston had been charged in the respondent's letter of 24 January 2014. 265 Having considered those contextual circumstances, the question remains whether Jena was telling the truth in giving the evidence to which I have referred in para 261 above. I am satisfied that he was. There was nothing improbable about that evidence. Further, as a matter of impression, I formed the view that Jena was telling the truth, not only here but elsewhere. He struck me as a conscientious and careful man who took his responsibilities seriously. That he should understand that the decision whether to dismiss Johnston should be made to the exclusion of such opinions as may have been circulating amongst other management personnel is consistent with the impression which I gained of him during the course of his evidence. On the subject presently under discussion, I accept Jena's evidence that, in his decision to dismiss Johnston, he did not have regard to Thomson's email of 17 January 2014. It is not established that any other expression of opinion on the matter by Thomson came to Jena's attention, but in any event I would make the formal finding that Thomson's opinion did not influence Jena in the decision which he made. 266 The next person whose potential input into that decision must be considered is Hulme. Unlike Thomson, he spoke to Jena at the very time that he, Jena, was deliberating. But Jena denied that Hulme had any input into the decision that was made. On one view, that strikes one as an unlikely proposition: here was the Acting Operations Director of the national company telling Jena that he had no other choice. In the context of the purpose of Jena's telephone call to Hulme, however, there is some sense in what Jena said. Jena said that he wanted to inform Hulme of the possibility of a "backlash" if his decision were to terminate Johnston's employment. It is unsurprising that he should want to give Hulme, in effect, a heads-up on that possibility. Had there been such a backlash and someone in Hulme's position had not been informed about it in advance, Jena would probably have been subject to justifiable criticism. That did not mean that Hulme needed to make the observation which he did about the choices open to Jena, but seeking Hulme's advice on whether Johnston should be dismissed was not Jena's purpose. Nor, I would find, was he influenced by Hulme's observation. 267 On the other hand, since it was undoubtedly a purpose of Jena's call to keep Hulme informed as to what was happening at the terminal, and to warn him about possible consequences, I would accept that, had Hulme made a decisive intervention contrary to the lines along which Jena was thinking, Jena would most probably have changed course. Hulme might, for instance, have said that the company nationally could not tolerate any kind of industrial backlash, and directed Jena to stay his hand. That would have amounted to influence. But Hulme made no such intervention. 268 Subject only to what I have said in the previous paragraph, I accept Jena's evidence that Hulme had no role in his decision to dismiss Johnston. 269 Finally in this group, I consider Pastro. She gave evidence that she did not advise Jena on the question whether Johnston should, or should not, be dismissed. Jena's evidence was to the same effect. Neither was challenged on the evidence referred to. I find that Pastro's views, whatever they were, had no influence on Jena's decision to dismiss Johnston. 270 On the findings which I have made, the actual views of Thomson, Hulme and Pastro on the question whether Johnston should be dismissed are irrelevant, because Jena, the decision-maker, did not have regard to them. For the sake of completeness, however, and lest those findings be wrong, I make the following findings about the views of these managers. 271 It is clearly to be inferred from Thomson's email of 17 January 2014 that he thought that Johnston should be dismissed, and that the gravity of the misconduct which had been found against him by Papillon was increased by the circumstance that he was "a trained and experienced union delegate". There may be some other way of reading that email, and it may not have represented what Thomson actually thought, but, absent Thomson from the witness box, I have little hesitation in drawing the inference that a reason for Johnston's dismissal, in Thomson's mind, was his position as a delegate of the Union. That is the single aspect which I reserved at the end of para 234 above. 272 As to the matter just dealt with, I would add the applicants' case was not that, in making his decision to dismiss Johnston, Jena had taken into account the circumstance that apparently attracted itself to Thomson, namely, that Johnston's position as a delegate added gravity to his misconduct on 6 August 2013. Save in respect of their reliance on Thomson's email of 17 January 2014, the applicants made nothing of the events of that day in their case under Pt 3-1 of the FW Act. Most importantly, it was not put to Jena that he considered (whether prompted by Thomson or otherwise) that Johnston's position as a delegate warranted the taking of a more serious view of that misconduct. Although it is true that the respondent bore the onus of proof in relevant respects, Jena denied that Johnston's position as a delegate was part of his reasons and, if it were to be contended that that position made his misconduct on 6 August 2013 more serious, that ought to have been put to him. As I say, I do not understand such a contention to have been advanced, but I make the observations in this paragraph for the sake of completeness. 273 There is nothing in the evidence to locate any of the reasons prohibited by the FW Act within Hulme's thinking. There is nothing from which an inference would be open that he favoured the dismissal of Johnston for reasons which included any of those reasons, and therefore there is no warrant for treating the respondent's failure to call Hulme as a basis for increased confidence in the drawing of any such inference. Indeed, I would find on the probabilities that the only reasons which, in his thinking, favoured Johnston's dismissal were the two transgressions identified in Papillon's final report and in the respondent's letter of 24 January 2014. Hulme was brought into the circle of managers discussing the report only at the point of the meeting on 20 January 2014, and what he understood about the choices facing the respondent may, to an extent, be implied from Jena's opening comment to him when the two spoke by telephone on 28 January 2014, namely, that nothing had been presented by Johnston that differed from that which came out of the investigation. The sense of the "no other choice" comment was that of someone who was facing the inevitability of an outcome brought about by contemporary, uninvited, circumstances. It was the outcome of the investigation, and Johnston's failure to cast the Papillon findings in a benign light, that gave Jena "no other choice". 274 Pastro's views made their way into the evidence in a most unconventional way. In chief, her evidence was that she did not make, and did not participate in making, the decision that Johnston should be dismissed. She also gave evidence that, at each of the meetings which she attended and which might be thought potentially relevant to the question why Johnston was dismissed - the meeting with representatives of Papillon on 25 September 2013, the teleconferences of 11 December 2013 and 20 January 2014, and the meeting in Jena's office on 28 January 2014 - none of the facts and circumstances which the applicants had alleged as reflecting the reasons prohibited by the FW Act was discussed. The only exception was that Johnston's position as delegate was mentioned in contexts which could only be regarded, for present purposes, as benign, such to provide background to Papillon and as possibly giving rise to industrial dislocation in the event that the consequence for Johnston was dismissal in the meeting of 11 December. Beyond that, there was no occasion for Pastro to be led as to the reasons why she might have done something which she did not do. 275 Under cross-examination, it emerged that, during the course of the meeting in Jena's office on 28 January 2014, but not before, Pastro reached the same conclusion as Jena ultimately did, namely, that Johnston should be dismissed. But she also gave evidence that she did not communicate that view to Jena. Then, in re-examination, counsel for the respondent asked whether, in reaching that conclusion, Pastro was influenced to any extent by any of the aspects of Johnston's status, role or activities which corresponded with the reasons for his dismissal which the applicants alleged against the respondent. Over the objection of counsel for the applicants, I allowed those questions to be asked. They were all answered in the negative. I permitted counsel for the applicants to cross-examine Pastro further on these matters, and they put to her that she had reached that conclusion for reasons which corresponded with those alleged against the respondent. That further cross-examination produced consistent denials. There was, of course, something purely formal about both series of questions put to Pastro in this way, and about her one-word answers, but that circumstance, in my view, reflects the reality that, by the terms of s 361 of the FW Act and the applicants' allegations, the respondent was obliged to deny propositions that had nothing to do with the facts, and the dynamics of the facts, that actually led to Johnston being dismissed from his employment; and counsel for the applicants, correspondingly, were obliged to put propositions to Pastro that bore little or no relation to those facts and dynamics. 276 I find that it was not until 28 January 2014 that Pastro came to the view that Johnston should be dismissed. The reasons for that view were confined to the matters which had been alleged against him, and were reflected in the respondent's letters of 24 January and 10 February 2014. Her reasons did not include any that were prohibited by the FW Act. 277 For the above reasons, I find that the respondent did not dismiss Johnston for any reason, or for reasons which included any reason, that would attract the operation of s 340 or s 346 of the FW Act. The applicants' case under Pt 3-1 must be rejected.

Disposition of the proceeding 278 For the reasons given above, the Application must be dismissed. I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.