The Australian Workers' Union, NSW on behalf of Kevin Cook v OneSteel Trading Pty Ltd

Industrial Relations Commission (NSW)|1988-11-24|Before: Harrison DP

CITATION : The Australian Workers' Union, NSW on behalf of Kevin Cook v OneSteel Trading Pty Ltd [2004] NSWIRComm 359 PARTIES : The Australian Workers' Union, NSW (on behalf of K Cook) OneSteel Trading Pty Ltd FILE NUMBER: IRC 2858 of 2004 CORAM: Harrison DP CATCHWORDS : Application re unfair dismissal pursuant to s 84 of Industrial Relations Act 1996 - misconduct - threats, intimidation and harassment toward other employees. Held - conduct proven - defence of victimisation of union delegate not made out - employment record considered - termination of employment not harsh, unjust or unreasonable - application for intervention refused. LEGISLATION CITED : Industrial Relations Act 1996 Jones v Dunkel (1959) 101 CLR 298 In the Matter of a dispute between Electrolytic Refining and Smelting Company of Australia Limited and Building Workers Industrial Union of Australia, New South Wales Branch re limitation on the number of bricklayers (No 1356 of 1988, Redman CC, 24 November 1988, unreported), AFMEPKIU on behalf of Ahmad Rezai Kashkooli and Dandy Designs (IRC 2264 of 1999, O'Neill C, 27 August 1999, unreported), CASES CITED : In the matter of a claim for relief relating to the dismissal of Andrew Gorman by BHP Integrated Steel Division (IRC 4242 of 1999, Connor C, 13 July 2000, unreported), North v Television Corporation Ltd 11 ALR 599, Franklins Limited v Webb (1996) 72 IR 257. Briginshaw v Briginshaw (1938) 60 CLR 336 HEARING DATES: 09/28/2004; 09/29/2004; 09/30/2004; 10/01/2004 DATE OF JUDGMENT: 11/26/2004

APPLICANT Solicitor Mr C Tanner Maurice Blackburn Cashman LEGAL REPRESENTATIVES: RESPONDENT Solicitor Mr D Lloyd, Blake Dawson Waldron

JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP Friday, 26 November 2004

THE AUSTRALIAN WORKERS' UNION, NEW SOUTH WALES (O/B KEVIN COOK) AND ONESTEEL TRADING PTY LTD

Application re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 ("the Act")

1 Mr Kevin Cook was employed by OneSteel Trading Pty Ltd ("the Company") in the Galvanising Department of the Pipe and Tube Division from 29 January 1997. Mr Cook's employment was terminated on 12 May 2004 on the grounds of serious and wilful misconduct. The Company undertook an investigation and satisfied itself that Mr Cook had brought a firearm to his place of employment and was guilty of intimidating and threatening violence against other employees.

2 Mr Cook denies the allegations made, asserting that there is no evidence of the conduct alleged, and putting forward a belief that Company Officers had fabricated information and offered inducements to other employees to give false information to support the termination of his employment due to his activities as a duly elected delegate of the Australian Workers' Union, NSW (AWU) ("the Union").

3 The matter was not capable of resolution in conciliation and proceeded to arbitration on 28, 29 and 30 September and 1 October 2004. By arrangement between the parties, the Company brought its evidence in support of the allegations in the first instance, affording Mr Cook the opportunity to respond.

4 The Company brought evidence from the following employees of its Galvanising Department, Pipe and Tube Division: Mr Neil Naismith - Manager, Operations Mr Stephen Ingham - Greaser Acid/Trades Assistant Mr Craig Wettig - Boilermaker Mr Terence Brown - Production Co-ordinator Mr Paul Kenna - Ironworker Mr Craig Beeston (by subpeona) - Fitter Mr Jason Wagner - Fitter Mr Geoffrey Armstrong - Superintendent Operations No 4 Mill and from Mr Anthony Cosgrove, Senior Factual Investigator, employed by Quantum Investigations (Newcastle) Pty Ltd ("Quantum").

5 Mr Cook gave evidence on his own behalf. Other evidence was brought from the following employees of the Galvanising Department, Pipe and Tube Division: Mr Nigel Hanna - Electrician Mr Brett Lickiss - Skimmer Mr Daniel Bolth - Ironworker Mr Hayden Sharpe - Fitter/Machinist Mr Nathan Yule - Extra relief, performing duties of employees who are taking breaks Mr Michael O'Hearn - Process Operator

6 The evidence reveals that the first allegation made against Mr Cook, that firearms had been kept on the Company's site, was put to Company officers by a former employee, Mr Geoffrey White, in March 2004.

7 Mr Naismith's evidence is that the matter was reported to the NSW Police at Waratah Police Station and that he was informed by a Detective that, on the available information, the Police would be unlikely to obtain a search warrant. Mr Naismith instructed Mr Armstrong to have further discussions with Mr White and a Company officer, Mr Bell, to whom the initial allegations were made.

8 These discussions took place in early April 2004 and included Mr Bolth. Mr Naismith's evidence is that subsequent to these discussions he concluded that the allegations were: (a) There were handguns on the Company's site; (b) Mr Cook had stored a shotgun in the locker used by Mr Bolth in the Galvanising Department; (c) Mr Cook had been on site with a handgun down the back of his trousers; and (d) Mr Cook had brought a 0.22 calibre rifle on site for the purpose of asking Mr Beeston to manufacture a silencer for the rifle.

9 Mr Naismith's evidence is that Mr White subsequently contacted him by telephone, informing him that he would not make a statement or pursue the allegations further.

10 Later, on the morning of 7 April 2004, Mr Naismith, in company with Messrs Armstrong and Brown, opened the locker used by Mr Bolth in which it was alleged the firearm had been stored. There was no firearm found in the locker.

11 The following day, Thursday, 8 April 2004, Mr Naismith met with all senior delegates, informed them of his concerns, and sought their co-operation in resolving the allegations and ensuring that no activity that could give rise to such allegations occur in the future. Later that day Mr Naismith, in company with Messrs Armstrong and Brown, addressed all Galvanising Department employees at work at that time, informing them of the allegation of firearms on site, and that employees were being intimidated and harassed. Mr Naismith issued a general warning that such behaviour was illegal and, to the extent it was occurring, should cease immediately. He informed all employees present, including Mr Cook, that there would be serious consequences for any persons found to be engaging in such activities.

12 Mr Naismith's evidence is that he continued to explore the action available to the Company, consulting with a local security firm and the Police to determine the rights of inspection and enquiry, given the state of evidence. Mr Naismith's evidence is that this line of enquiry was suspended pending legal advice in early April 2004.

13 Mr Naismith deposed that on Friday, 23 April 2004 he was informed by Mr Armstrong that Mr Ingham had complained that Mr Cook had made verbal threats of physical violence against him over the two way intercom system in the Galvanising Department. Mr Armstrong was instructed that he should interview Mr Ingham to obtain more details. Mr Naismith's evidence is that later that day he received a telephone call from Mr Maher of the AWU who informed him that Mr Ingham was in his office at the AWU building seeking assistance from the Union in respect to the threat by Mr Cook.

14 Mr Ingham detailed the terms of the threat to Mr Maher and Mr Naismith. Mr Maher had activated the loudspeaker function of his telephone to allow Mr Naismith to participate in the conversation. Mr Maher offered the view that he believed Mr Ingham to be in no danger and the matter need not be pursued. Mr Naismith rejected that position, informing Mr Maher and Mr Ingham that the matter would be pressed and suggested that Mr Maher confer with Mr Cook.

15 On 3 May 2004 Mr Naismith met with the senior delegates of the AWU and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch and informed them that Quantum would be undertaking an enquiry into the allegations of harassment, firearms on site, and other matters in the Galvanising Department. Later that day Mr Naismith met with all employees of the Galvanising Department and informed them of the investigation.

16 During the course of the ensuing week Messrs Cosgrove and Boan, Senior Factual Investigators employed by Quantum, conducted interviews with employees in the Galvanising Department. At the conclusion of the investigation Messrs Cosgrove and Boan informed the Company that as a result of their investigations they had reached the following conclusions: (a) A firearm owned by Mr Cook, likely being a shotgun or broken down rifle which was owned by Mr Cook had been stored in the locker used by Mr Bolth;

(b) A 0.22 calibre rifle had been brought onto the Company's site by Mr Cook and provided to Mr Beeston for the purpose of manufacturing a silencer;

(c) Mr Cook had coerced Mr Beeston into manufacturing a silencer for the 0.22 calibre rifle at work. Mr Beeston had subsequently manufactured a silencer which he had provided to Mr Cook;

(d) Mr Cook had held a discussion with Mr Armstrong in the Galvanising Department during which time he had a handgun tucked down the back of his pants;

(e) Mr Cook had threatened to assault Mr Ingham, on 22 April 2004

17 Disciplinary procedures were initiated on 11 May 2004 in which the allegations were put to Mr Cook who strongly denied each charge. A further disciplinary conference took place on 12 May 2004 in which the allegations were again put to Mr Cook. At both meetings Mr Cook had the benefit of representation and support from Union delegates and on 12 May 2004 Mr Maher and Mr Morrison, identified as an AWU legal representative, were present.

18 Mr Naismith's evidence is that no material information was offered or facts advanced to support Mr Cook's denial of the allegations. Mr Naismith deposed that he formed the view on the evidence available to him that: (a) Mr Cook had brought a firearm, or firearms on site on a number of occasions and had endangered the lives of himself and others by those actions. This was a breach of Company policy constituting misconduct;

(b) Mr Cook had threatened and acted in an intimidatory manner towards Mr Ingham on 22 April 2004 causing Mr Ingham to be concerned for his personal safety. Further Mr Cook had coerced or intimidated Mr Beeston into manufacturing a silencer for a firearm. This behaviour was a breach of Company policy and constituted misconduct;

(c) Mr Cook had not provided any additional information or mitigating circumstances for these actions other than completely denying the allegations. Due to the evidence established by the investigation Mr Cook's outright denial of the allegations was not plausible; and

(d) therefore these breaches of Company policy and misconduct of Mr Cook warranted summary dismissal.

19 Mr Cook's employment was then terminated. Neither Mr Cook nor his representatives sought an appeal conference available to them pursuant to the disciplinary procedures prescribed by the Award.

20 Mr Naismith's evidence is that Mr Cook's employment history was given appropriate consideration. Mr Cook's employment record is detailed in Mr Naismith's affidavit in the following terms: (a) On 2 June 1997 Mr Cook was suspended for 4 days following a physical fight with Kevin Edmonds, an employee in No. 4 Mill. A copy of the memorandum to the Time Office concerning the suspension is attached to this statement and marked "NN7";

(b) On 20 October 1997 Mr Cook was issued a written warning for unacceptable behaviour in abusing female employees at the Company's canteen. A copy of the disciplinary card entry is attached to this statement and marked "NN8";

(c) On 27 October 1999 the Company had cause to write to John Boyd, AWU Organiser, concerning misleading information Mr Cook gave to his supervisor in order to obtain permission to attend a union meeting off-site. A copy of the letter to Mr Boyd is attached to this statement and marked "NN9";

(d) On 11 December 2002 Mr Cook was verbally warned for taking and copying documents from a company officer's desk, Mr Bell, without his permission. A copy of a file note prepared by David Storck, Superintendent Galvanising and Finishing, concerning the verbal warning is attached to this statement and marked "NN10";

(e) On 21 August 2003 I had cause to speak with Mr Cook, in the presence of other union delegates, concerning his comments to the Company's occupational physician, Dr John Shepherd, that he would have Mr Shepherd 'disbarred'. A copy of a file note I prepared concerning my discussion is attached to this statement and marked "NN11";

(f) On or about 16 September 2003 an allegation was made that Mr Cook had sexually harassed Peter Bridge, an apprentice in the Galvanising Department, by Mr Cook placing his penis near Mr Bridge's face. At Mr Bridge's request the allegation was not pursued. A copy of a file note prepared by Mr Armstrong concerning this discussion with Mr Bridge is attached to this statement and marked "NN12 "; (g) On or about 20 October 2003 Mr Cook was counselled concerning his timekeeping and failure to clock in. A copy of a file note concerning this discussion with Mr Cook is attached to this statement and marked "NN13"; and

(h) Mr Cook has had a poor attendance record. A copy of Mr Cook's attendance matrix is attached to this statement and marked "NN14".

21 In pressing his denial of the allegations Mr Cook put that the Company had sought the termination of his employment due to his activities as a union delegate and that both Messrs Bolth and White were offered inducements to make statements against him by Mr Trent Bell, a Safety Systems Administrator not called to give evidence, who pursued enquiries on Mr Armstrong's instructions.

Allegations Against Mr Cook of Firearms on Site and Alleged Inducements Offered by Company Officers

22 The initial allegation by Mr White was put to Mr Bell who informed Mr Armstrong. Evidence of Mr Bell's enquiry is available from Messrs Bolth and Armstrong. Mr Bolth's evidence is that he was approached in early April 2004 by Mr Bell and asked if he would speak to Mr White on the telephone in Mr Bell's office. Mr Bolth deposed that when he arrived at Mr Bell's office Mr White was no longer on the phone. Mr Bolth's evidence is that Mr Bell informed him that it was Mr Cook that had caused Mr White to be dismissed from his employment and that Mr White would make a statement against Mr Cook. Mr Bolth was invited to make a statement as well. Mr Bolth's evidence is that Mr Bell informed him that Mr White would be given a job at another part of the Company in return for the statement. Mr Bolth further deposed that Mr Bell informed him that he was aware of drug dealing on the site by persons named by Mr Bolth in his affidavit (exhibit 24).

23 Mr Bolth's evidence is that Mr Bell informed him that the Company was only interested in Mr Cook as he was affecting the Company's operations, asserting that if Mr Cook stayed in the Galvanising Department it would close.

24 Mr Bolth's evidence is that Mr Bell further informed him that Mr Ingham would make a statement that he observed Mr Cook and Mr Bolth going to Mr Bolth's locker and then the heavy storage area together.

25 Mr Bolth acknowledged that Mr Cook had put something in his locker recently, that he was unaware of what it was, adding: "If it was a gun, I wouldn't be happy about that".

26 In detailing this event Mr Bolth deposed that a few weeks prior to early April 2004 Mr Cook asked him if he had room in his locker, to which he replied that he had acquired a spare locker. Mr Bolth's evidence is that he and Mr Cook opened his spare locker and Mr Cook placed a plastic bag approximately 14 inches in length in the locker, and Mr Bolth locked it. Mr Bolth asked Mr Cook whether he wanted the key, to which he replied that Mr Bolth should keep it. Mr Bolth deposed that the locker had the initials "R.P." on the door, having been used by a person with those initials previously. Mr Cook wrote Mr Bolth's name on the door of the locker.

27 Mr Bolth's evidence is that following this conversation with Mr Bell he was invited to meet with Mr Bell and Mr White at a coffee shop in Newcastle at 1.00 pm that day. Mr Bolth's evidence is that he telephoned Mr White who agreed to the meeting, arranging to meet him at 12 noon prior to Mr Bell's anticipated arrival at 1.00 pm. Mr Bolth deposed that on meeting Mr White informed him: "It was Cooky's fault I got the sack and they are going to get me a job if I make a statement against him".

28 Mr Bolth advised Mr White that he did not think he was doing the right thing, followed by a discussion about Mr White's health and medical condition, which is not disclosed in the evidence.

29 Mr Bolth deposed that Mr Bell joined them at 1.00 pm as arranged. Mr Bolth deposed that Mr White appeared enthusiastic at the prospect of them both making statements against Mr Cook, which would allow the installation of surveillance cameras in the Galvanising Department. Mr Bolth deposed that Mr Bell offered him time off with pay and suggested a week away in Port Macquarie with his boys for Mr White once the cameras were installed. Mr Bolth deposed that there was then discussion of the possibility of Mr White working as a truck driver with Metaland, an associated Company. Mr Bolth deposed that he informed Mr Bell that he would not make a statement, which was supported by Mr White who, on Mr Bolth's evidence, told Mr Bell that he did not want Mr Bolth involved. Mr Bolth's evidence is that they each had a light meal and soft drinks, which Mr Bell paid for.

30 Mr Bolth deposed that a few days later Mr White telephoned him and told him that he had decided he would not make a statement. Mr Bolth's evidence is that shortly after his conversation with Mr White, Mr Bell telephoned him and asked him to meet with he and Mr Armstrong. Mr Bolth's evidence is that he did not want to meet with them but was persuaded to do so. The meeting took place at the Stockton Ferry Wharf prior to Mr Bolth's rostered shift. Mr Bolth informed Mr White of the meeting and he also attended. Mr Bolth's evidence is that Mr Armstrong and Mr Bell informed him of the report to the Police and emphasised their need for him to make a statement. Mr White offered to make a statement if Mr Bolth was left out of the matter. Mr Bolth's evidence is that Mr Armstrong requested both to make a statement that day to investigators waiting in Newcastle to meet them. Mr White declined and undertook to do it the next day. Mr Bolth deposed that Mr Armstrong offered an inducement to Mr White, offering to look into his case, stating his belief that the Company had made a mistake when Mr White was dismissed. 31 Mr Bolth further deposed that Mr Armstrong encouraged him not to go to work but to go home, a proposition he declined as it would cause his wife concern if he arrived home early. Mr Bolth deposed that Mr Armstrong sought an undertaking from him not to go anywhere near his locker, to which he agreed. 32 Mr Bolth's evidence is that he then went to work and on arrival informed Mr Cook of the previous events and instructed him to remove whatever he had put in his locker, giving Mr Cook the key to do so. Mr Bolth's evidence is that Mr Cook returned approximately four minutes later, returned the key to him and on enquiry as to the article stored in the locker, Mr Cook informed him that it was "trike axles" which he then put in the fitter's locker. Mr Bolth deposed that he then checked the locker and noted that the bag Mr Cook had placed there was gone.

33 Mr Bolth's evidence is that a few days later Mr Armstrong questioned him about going to the locker, to which he replied "I didn't move nothing Meggsie". Mr Bolth refutes Mr Armstrong's evidence that during the course of the Stockton conversation he had conceded that he was aware Mr Cook had put a gun in his locker and denies that he informed Mr Armstrong that he was: "shit scared of him [Mr Cook]". Mr Bolth deposed that he is not scared of Mr Cook, having known him since he was 11 years of age, that he had never seen Mr Cook in possession of a gun and never made any statement to that effect, and any reference to being "shit scared" related to the risk that he would lose his job if he was associated with a firearm if one had been placed in his locker.

34 Mr Naismith in his second affidavit (exhibit 3) gives evidence of the report to him by Mr Bell of the meetings with Mr White. Mr Bell reported that Mr White was seeking re-employment, to which Mr Bell's reported reply was: "I don't think the Company would come at that Geoff".

35 Mr Bell then undertook to put Mr White's request to management. Mr Naismith's evidence is that on representation from Mr Bell, he informed Mr Bell emphatically that there would be no offer to Mr White for information. Mr Naismith deposed that Mr Bell later informed him that he had put to both Messrs White and Bolth that the Company may be able to send Mr White out of town for a while to protect his safety. Mr Naismith's evidence is that he then said to Mr Bell: "Geoff White is no longer an employee and we have no obligations to him. Geoff needs to decide whether he wants to assist or not and make a decision"

36 Mr Naismith's evidence is that Mr Bell does not hold a position of authority to make an offer of any benefit to Mr White. Mr Naismith deposed that he was satisfied that both Messrs Armstrong and Bell understood his instructions that no job or other benefit was to be offered.

Manufacture of Firearm Silencer 37 Mr Beeston is a fitter employed in the Finishing Department who was previously employed as a fitter in the Galvanising Department. His evidence is that he has a long held interest in the sport of shooting, holds a New South Wales Firearms Licence, and is the owner of a number of registered firearms.

38 Mr Beeston's evidence is that Mr Cook approached him to make a silencer for a .22 calibre firearm. Mr Beeston's evidence is that shortly after he commenced in the Galvanising Department, where he worked between February 2003 to late January 2004, he realised that Mr Cook was very influential, putting that: "…he wasn't the boss but he was running it because he would raise his voice if he didn't agree with what you were saying - when he did that it was enough for most of them to back off - that and the fact that he was a bikie made it intimidating. I tried to keep to myself and just do my work - without any trouble."

39 Mr Beeston's evidence is that Mr Cook approached him about three or four months after he commenced in the Galvanising Department, enquiring after his knowledge about guns and subsequently if he could make a silencer. Mr Beeston deposed that he had never made a silencer, but had seen one that had been taken apart. It is Mr Beeston's evidence that he was unhappy about being asked but was made to feel that he would keep getting hassled if he refused. Mr Beeston's evidence is that he had no ability to make a silencer however going along with Mr Cook was easier then saying no.

40 Mr Beeston's evidence is that some days later Mr Cook approached him in the Galvanising Department about making the silencer and that he informed Mr Cook that he would have to take measurements to be able to do so. Mr Beeston deposed that a couple of days later Mr Cook approached him with a .22 calibre rifle barrel wrapped in a towel. Mr Beeston deposed that the barrel had been removed from the stock and the end of the barrel already tooled. Mr Beeston used a thread gauge to measure and then returned the barel to Mr Cook. Mr Beeston deposed that he did not recall where Mr Cook went with it when he returned it, however, when he first brought the barrel to Mr Beeston he approached from the general direction of the lockers. Mr Beeston deposed that he never saw the barrel again after that day.

41 Mr Beeston deposed that Mr Cook periodically enquired as to the progress of the manufacture of the silencer and that he was dragging it out, hoping that if he took long enough Mr Cook would forget about it, however the more time that went by the more demanding Mr Cook became.

42 Mr Beeston deposed that he attempted to make the silencer by using bits of steel and washers put together, but that on completion he would have been very surprised if it worked. Mr Beeston's evidence is that he gave the completed article to Mr Cook who informed him a few days later that it had silenced the shot but the bullet had come out sideways. Mr Beeston deposed that Mr Cook gave the article back to him and expressed his displeasure that it did not work. Mr Beeston deposed that he threw the article in the scrap bin and that he had never had another approach from Mr Cook. Mr Beeston deposed that he was happy that the silencer did not work, having considered that if it did he would have got more "orders".

43 Mr Beeston deposed that he subsequently discovered that it had become common knowledge within the Galvanising Department that he had made "the silencer" and that he remonstrated Mr Cook about the breach of confidentiality.

44 Mr Beeston gave further evidence that on 6 May 2004 as he was leaving the workplace he saw Mr Cook and Mr Bolth standing together.

45 Mr Beeston's evidence is that Mr Cook confirmed that he had not mentioned the issue further and that Mr Bolth threatened him, directing the following words to Mr Beeston: "If you say any more the boys will visit you, don't be a dog".

46 Mr Beeston deposed that he took the threat seriously, putting that he had seen the way that Mr Cook treated others who did not go along with him, adding that the reason for his request for a transfer out of the Galvanising Department was the conduct of Mr Cook and management's apparent inability to exercise any control. Mr Beeston deposed that management were aware at the time of his request for transfer that he was suffering from depression, which he was managing with the assistance of medication, and that the added pressure of dealing with Mr Cook and the request for him to make a silencer had a significant impact upon him from which he needed to escape.

47 The evidence of Mr Kenna is that he saw Mr Cook and Mr Beeston in discussion at a workbench. Mr Kenna deposed that they were both looking at an object on the workbench which he identified as a rifle barrel. Mr Kenna deposed that he had been a licenced recreational shooter for some 15 to 20 years, had owned two rifles in that time, and was certain from his experience that the object he observed was a rifle barrel.

48 Mr Cook, in his evidence, denied any involvement with Mr Beeston in the manufacture of a silencer or the observation of a rifle barrel on Mr Beeston's workbench.

49 The evidence of Mr Hanna is that he was aware that Mr Beeston had an interest in firearms and had observed him attempting to repair a revolver and had also observed him attempting to make a silencer for a .22 calibre rifle. Mr Hanna's evidence is that he had several conversations with Mr Beeston concerning the manufacture and testing of the silencer, asserting that Mr Beeston told him that he had tried it out and it had worked, and that he was making one per shift for sale. 50 Mr Beeston is subject to disciplinary action and has been stood down from employment pending further enquiry. Mr Beeston acknowledged that he had the frame of a revolver, which he described as "a relic", which he was restoring as a collector's item. Mr Beeston deposed that the article referred to by Mr Hanna as a revolver was merely the frame, and could not be regarded as a firearm as it could never be restored to its original condition or working order.

51 Mr Ingham made a statement to Messrs Cosgrove and Boan during the course of their investigation on 11 May 2004. This statement confirms that Mr Ingham had discussed the issues of drugs and firearms in the Galvanising Department with Mr Bell on 21 April 2004, which he said was observed by Mr Beeston whom he knew to be a friend of Mr Cook, and concluded that the discussion would be reported to Mr Cook.

52 On Thursday 22 April 2004 Mr Ingham was engaged on the run out table from 4.00 pm. Mr Cook was in the operator's box and was observed by Mr Ingham to attend the leading hand's office to take a telephone call. Mr Ingham overheard parts of that telephone call in which Mr Cook expressed his appreciation to the caller, who Mr Ingham concluded was Mr Beeston reporting the conversation that he (Mr Ingham) had with Mr Bell the previous day. Mr Ingham returned to the run out table and started work, he had been there about 10 to 15 minutes when he heard Mr Cook scream threats and insults at him in a highly angry and aggressive manner through the local intercom system. The threats, as set out by Mr Ingham in his affidavit, included having his throat slashed and being referred to friends of Mr Cook, whom he took to be the Gladiators Motor Cycle Club ("the Gladiators") on the basis of previous reference to that club by Mr Cook.

53 Mr Ingham deposed that he asked Mr Day, who was working at the feed table, whether he had heard what Mr Cook had said. Mr Ingham's evidence is that Mr Day said to him that he heard yelling but didn't know what was said.

54 Mr Ingham reported the incident to Mr Bowden, the leading hand on shift, at approximately 4.30 pm and was advised to report it to management. No management personnel were available at that time. Mr Ingham finished his shift at 6.25 pm and left the plant. Mr Ingham experienced an anxious night and the next day, being a rostered day off for him, decided to seek out assistance from the Union.

55 In transit to the Union's offices Mr Ingham rang Mr Armstrong and informed him of the events. Mr Ingham met with Mr Maher and spoke with Mr Naismith from Mr Maher's office to inform him of the incident.

56 Mr Ingham's evidence is that on or about 10 May 2004 Mr Cook approached him in the boilermaker's compound wanting to talk to him. Mr Ingham was reluctant to engage Mr Cook in conversation but did so as other people were around. A lengthy conversation ensued in which, according to Mr Ingham, Mr Cook did most of the talking. Mr Ingham's evidence is that during the course of the conversation Mr Cook patted him on the leg and said "I didn't threaten you did I?" to which Mr Ingham responded: "What about what you said two weeks ago? I'm still ropable about that"; to which Mr Cook replied: "You don't understand all the pressure I'm under. The Gladiators could get me and I could lose my job. You'd be the same if you were under that pressure". Mr Ingham deposed that there was further discussion concerning guns and drugs onsite which did not please Mr Cook.

57 Mr Ingham deposed that on or about 8 July 2004, due to his continuing concerns, he reported the matter to the Police. Mr Ingham further deposed that in the time from 22 April 2004 he has received approximately nine telephone calls at his residence which, when answered, the caller remains silent for a minute or so and then hangs up.

58 The evidence of Mr Wettig (exhibits 9 and 10) is that he knew Mr Cook from interaction with him in Mr Cook's role as delegate for the AWU and Mr Wettig's role as an acting delegate for the AMWU and that Mr Cook had previously worked as Mr Wettig's trades assistant.

59 Mr Wettig deposed that he became aware of the incident between Mr Cook and Mr Ingham in the week following 22 April 2004 and discussed the matter with Mr Ingham. Mr Wettig's evidence is that Mr Ingham told him that Mr Cook said words to the effect: "I'll cut your throat … When you take your dog for a walk, will you come home?". Mr Wettig deposed that he formed the impression that Mr Ingham was genuinely frightened by the threat.

60 Mr Wettig deposed that he had raised the matter with Mr Yule who told him that "he hadn't heard it properly but had heard something about 'cut your throat'". Mr Yule denied this exchange with Mr Wettig in his evidence.

61 Mr Wettig has been employed by the Company for some 30 years, the past 18 months in the Galvanising Department.

62 It is Mr Wettig's evidence that shortly after he commenced in the Galvanising Department he realised that Messrs Cook, Bolth, O'Hearn and White, a former employee, caused problems with other departmental staff if they didn't fall into line with them. Mr Wettig's evidence at point 4 of attachment CSW1 to exhibit 9 is: "From my observations this could be from comments amongst themselves, directed towards the person they were singling out. Sometimes this was bullying the person, other times putting them 'down'. Other people working in the gal knew what was going on - I'd often go to the person that was being singled out and ask them "what was going on between you and Cook". Sometimes they would tell me, other times they would clam up. There was culture when I got there that people didn't really speak out about their treatment from Cook, Bolth or White - especially to Management. Because they weren't speaking out to anyone they tried to manage the situation by ignoring it. When they had finished singling out one person, they would move onto the next person. I don't think that anyone was ever accepted by them, basically you were on the outer unless you were "one of them". Kevin Cook used to be my T.A. - he was hard to work with because he rarely did anything I wanted him to."

63 The evidence of Mr Brown (exhibits 11 and 12) is that he is the Production Co-ordinator in the Galvanising Department. Mr Brown deposed that on 26 April 2004 Mr Ingham reported to him that Mr Cook had made a threat against him and that Mr Ingham appeared nervous and scared of Mr Cook and his connection with the Gladiators. Mr Brown further deposed that Mr Bowden had reported the event to him as well.

64 Mr Brown's evidence is that during March 2004 Mr Kenna informed him that he had heard Mr Cook had brought a gun to work. Mr Brown reported that to Mr Armstrong. Mr Brown further deposed that on Tuesday, 13 April 2004 at about 7.15 am he was approached in the production area of the Galvanising Department by Mr Cook who said to him: "Tell me who your company dogs are, don't worry I know who they are. If Management want me out, I'll go, if they pay. Is that dog Steve Ingham on leave because he dobbed me in?"

65 Mr Brown's evidence is that he informed Mr Cook that he was on the wrong track and should leave it alone and that Mr Lickiss and Mr Knight were also on leave. Mr Brown's evidence is that Mr Cook appeared angry during the course of this conversation and that Mr Brown terminated the conversation. Mr Brown gave evidence of prior conversations with Mr Cook in which Mr Cook named Messrs Lickiss, Knight and O'Hearn as persons he believed had made allegations against him.

66 Mr Cook denies the allegation of threat against Mr Ingham. Mr Cook concedes that he had received a telephone call in the leading hand's office and may well have said words to the effect of: "Thanks mate, I really appreciate it", but he denies that the call was from Mr Beeston. Mr Cook further concedes that Mr Ingham may have heard him speaking about his association with the Gladiators and particular members thereof; and further admits that he may have patted Mr Ingham on the leg but denies the assertion of the associated comments.

67 Mr Cook deposed that there was no basis for concern arising from his association with the Gladiators. At point 10 of his affidavit (exhibit 21) Mr Cook deposed that the Club does not engage in unlawful conduct, that it has a recreational purpose and plays a role in raising funds for various charities.

68 Mr Cook confirms the discussions with Mr Brown, who he deposed he sought out as supervisor, on learning that there were allegations that he had brought a gun to work. Mr Cook's evidence is that he was informed by Mr Bolth that the persons making allegations were Messrs Ingham, Lickiss, O'Hearn and Knight.

69 Mr Cook denies asking Mr Brown to: "Tell me who your company dogs are", as he had already been told by Mr Bolth. Mr Cook concedes that he may have put the question to Mr Brown: "Is that dog Ingham on leave because he dobbed me in?" or words to that effect.

70 During the course of cross examination Mr Cook conceded that he frequently used the intercom paging system, accepting that he may express his views in that manner more often than is appropriate, however, he maintains a denial that any threat was broadcast against Mr Ingham or that he had addressed Mr Ingham in an angry or confrontational manner.

71 Mr Cook is supported in his denial by Messrs Yule, O'Hearn and Lickiss.

72 Mr Yule denies the evidence of Mr Wettig that he confirmed the threat against Mr Ingham. Mr Yule's evidence is that he heard Mr Cook on the intercom that day, that Mr Cook is always joking over the intercom, and that what he had heard did not include any threat, just Mr Cook "mucking around".

73 The evidence of Mr O'Hearn is that he was working at the skimming station from 4.15 pm to 4.55 pm on 22 April 2004 and that he heard no threats uttered from the intercom. Mr O'Hearn's evidence is that had anything been said over the intercom he and Mr Yule were in hearing range. Mr O'Hearn denies that he was part of a group including Mr Cook which intimidated staff of the Galvanising Department as described by Mr Wettig. Mr O'Hearn's evidence is that he has never found Mr Cook to be intimidating, offering the opinion that Mr Cook has a dry sense of humour and is, in a sense, a stirrer. Mr O'Hearn deposed that some people might take comments from Mr Cook the wrong way, but he regards the allegations of intimidation as being an absurd distortion, putting that Mr Cook spends most of the time joking and testing other people's reactions.

74 Mr Lickiss' evidence is that he was at the skimming station from 3.35 pm to 4.15 pm on 22 April 2004 and was replaced by Mr O'Hearn at that time. Mr Lickiss deposed that he did not hear any threatening remarks over the intercom prior to taking his break at 4.15 pm. Mr Lickiss deposed that he could not comment on what happened after that time as he had left the area. Mr Lickiss adds that when he returned from his break there was no mention to him by anyone that anything unusual had occurred or that threats had been uttered.

75 A number of issues are raised in respect to Mr Cook's employment record.

June 1997 - Fight with Mr K Edmonds 76 Mr Cook deposed that he had never had an altercation with Mr Kevin Edmonds and does not know who that person is. Mr Cook's evidence is that he had an argument with a fellow employee by the name of Craig Pepper and that there was no physical fight.

October 1997 - Abuse of Canteen Staff 77 Mr Cook denies that he spoke to a member of the canteen staff in an abusive way. His evidence on this point is (Ex 21 para 94b): I did not "abuse" any employee. I spoke to a member of the canteen staff who had spoken abusively to me the following words: "There is no need to behave like a pig".

Allegation of providing misleading information 78 The allegation of providing misleading information to a supervisor and the taking of documents without permission from Mr Bell's office are disputed by Mr Cook who contends that he was given permission to attend a union meeting and was given permission to copy documents obtained from Mr Bell's office. Mr Cook acknowledges that there was a dispute about this issue, adding that no disciplinary action was taken.

August 2003 - Threat to Occupational Physician 79 The allegations of a threat to have Dr John Shepherd "disbarred" is denied by Mr Cook who contends that Dr Shepherd is not a qualified medical practitioner and he had occasion to dispute the use of a sample to conduct tests which were not authorised to be conducted.

Timekeeping and Attendance 80 Mr Cook refutes the assertion that he had been counselled concerning his timekeeping and failure to clock in. He asserts that he had discussions with a Ms Wivell about his time card being removed and that they agreed on a procedure for it to be kept at the gatehouse.

Allegation of Sexual Harassment of Apprentice 81 Mr Cook denies that he was involved in this event. Mr Tanner submitted, on instruction from Mr Sharpe, that Mr Knight was the employee concerned, whom he put is well known for entertaining himself and other employees with acts of this nature, described as "Puppetry of the Penis". Mr Naismith did not accept this version, reiterating that on investigation of this incident Mr Cook was the person identified. Mr Knight was not called to give evidence and the issue not raised with Mr Sharpe in his evidence.

Conduct As A Delegate 82 Mr Cook denies comments attributed to him that he has on occasion needed to stand over people when things need to get down (done), that this is part of the job (of delegate).

Harassment of Mr Hansen 83 In his affidavit Mr Cook responds to allegations of harassment of Mr Hansen, set out in attachment AJC 3 to exhibit 16, Mr Cosgrove's affidavit. Mr Hansen was not required to give evidence.

84 Mr Cook denies that he dealt with Mr Hansen in an abusive and intimidatory manner, deposing that the Galvanising Department was in a state of disrepair and there were many occupational health and safety concerns for which he and many other employees held Mr Hansen responsible. Mr Hansen was transferred out of the Galvanising Department, which Mr Cook concluded was a consequence of management accepting Mr Hanson's unsatisfactory performance. Mr Hansen has subsequently returned to the Galvanising Department.

85 Mr Hansen's assertion is that Mr Cook verbally attacked him in a meeting, saying: "We've got rid of you once so I'd be careful, we can fuck you off again". Mr Cook accepts that he spoke to Mr Hansen in this manner, deposing that he was referring to the fact that the employees did not intend to allow Mr Hansen to overlook his responsibilities and that he would be held accountable.

86 Mr Cook denies the assertion that he made the statement:" We are going to be in control of the place"; putting that after the distraction of the present investigation was over the employees intend to address maintenance, health and safety issues as a priority.

Harassment of Mr Wagner 87 The evidence of Mr Wagner is that he was transferred to the Galvanising Department and allocated an empty locker by management. Shortly thereafter Messrs Cook, Bolth and O'Hearn approached him asserting that they held lotto money in the locker and asked him to return it. Mr Wagner's evidence is that he was harassed concerning the fictional lotto money and that Mr Cook threatened to confiscate his personal tools and sell them. Mr Cook denies this assertion, putting that the matter was merely a practical joke and not pressed by him but by Messrs Bolth and O'Hearn.

88 Mr O'Hearn deposed that he started the joke on Mr Wagner and that Mr Cook and Mr Bolth pressed the issue. When he observed Mr Wagner becoming agitated he told him to settle down as they were just joking.

CONSIDERATION 89 Mr Lloyd referred me to a number of decided cases which he submitted set out the principles to be applied and offered appropriate guidance in resolution of the matter. The matters referred to by Mr Lloyd are: In the Matter of a dispute between Electrolytic Refining and Smelting Company of Australia Limited and Building Workers Industrial Union of Australia, New South Wales Branch re limitation on the number of bricklayers (No 1356 of 1988, Redman CC, 24 November 1988, unreported); AFMEPKIU on behalf of Ahmad Rezai Kashkooli and Dandy Designs (IRC 2264 of 1999, O'Neill C, 27 August 1999, unreported); In the matter of a claim for relief relating to the dismissal of Andrew Gorman by BHP Integrated Steel Division (IRC 4242 of 1999, Connor C, 13 July 2000, unreported); North v Television Corporation Ltd 11 ALR 599; Franklins Limited v Webb (1996) 72 IR 257.

90 In his submission Mr Tanner acknowledged the principles referred to and also referred to Franklins v Webb in respect to the onus of proof. Mr Tanner further referred to Baraguana's text on unfair dismissal in which he comments upon the principles set out in Franklins v Webb.

91 The principles are well settled. The standard of proof is the civil standard described in Briginshaw v Briginshaw (1938) 60 CLR 336.

92 This matter turns entirely upon findings of fact; allegations of conduct of sufficient gravity, if made out, are such to invoke cl 7(vii) of the OneSteel Trading Pty Ltd Newcastle Award (2004) 343 IG 875 at 884 ("the Award") which affords the employer the capacity to dismissal an employee without notice for misconduct.

93 The credibility of witnesses for each side was drawn into question. It was established during the course of evidence that there had been some discussion between witnesses in support of Mr Cook at a housewarming party at his residence. Mr Loyd submitted that the evidence was subsequently tainted and should be viewed sceptically.

94 Mr Tanner submitted that the evidence of company witnesses was tainted by the allegations of inducements and the clandestine style of interviews conducted by Messrs Bell and Armstrong, in particular Mr Bell's payment for the meals of Messrs Bolth and White at a meeting with them. Mr Tanner submitted that the evidence of Mr Beeston was self-serving and offered against Mr Cook to assist in the enquiry into Mr Beeston's conduct.

95 The evidence described a wholly unsatisfactory set of circumstances within the Galvanising Department and a less than desirable approach to dealing with the issues by Management.

Was There a Gun? 96 It is regrettable that the Company did not exercise its right to inspect the contents of Mr Cook's locker. The locker at all times remains the property of the Company for use by the employee for legitimate purposes. Inspection in the presence of Mr Cook and a Union official would have resolved all doubt. The evidence, as it is, offers the conclusion that there was a mysterious package transferred between Mr Cook and Mr Bolth and Mr Bolth's spare locker which raised considerable suspicion and gossip within the workplace. The package was said to contain "trike axles", but nowhere in the evidentiary material has anyone put what legitimate use a trike axle may be used for within the workplace or described its dimensions or why Mr Cook or anyone else would go to the lengths described to conceal such an item.

97 In the absence of any evidence or innocent explanation as to why a trike axle would be subject to such mystery, I am obliged to apply the rule in Jones v Dunkel (1959) 101 CLR 298 and am moved to a finding adverse to Mr Cook.

The Manufacture of a Silencer 98 The general state of evidence in respect to this matter is most unsatisfactory. I am inclined toward the version offered by Mr Beeston, however, it is not necessary to determine this point to resolve these proceedings.

Threat to Mr Ingham 99 The credibility of Mr Ingham's allegation of threat is attacked on the basis that the precise terms of the threat vary overtime in the various reports by Mr Ingham to fellow employees, Management and the Union. It is further suggested that Mr Cook's voice could not be identified over the intercom system and that Messrs O'Hearn and Yule were in a position to hear the threats, if made at the time Mr Ingham asserts.

100 I have less difficulty with the credibility of Mr Ingham than the evidence to the contrary. It is to be expected that where a threat of such physical violence is made and the level of anxiety produced, that the actual words of the threat and other conversations and communications with Mr Cook may well be combined.

101 The evidence is clear and unequivocal that Mr Cook later approached Mr Ingham, patting him on the leg during the course of attempting to convince him that he had not been threatened. This act is supportive of a threat being previously made and intimidatory in itself.

102 Mr Cook accepted that his "overuse" of the intercom system to muck around is well known. I cannot accept that, given the frequency of broadcasts by Mr Cook, it would be difficult for a regular listener to clearly identify Mr Cook as the speaker. It may well be that Messrs O'Hearn and Yule heard nothing and were out of range at the time, or it may well be that the deficiencies in the evidence put by Mr Lloyd surface at this point.

103 The evidence leads to a finding that Mr Cook made threats against Mr Ingham.

Mr Cook's Employment Record 104 Mr Cook's record offers no redeeming features and is supportive of an adverse finding. The issues raised in this aspect of the case create grave concern in respect to the culture and working environment within the Galvanising Department. The allegations of sexual harassment against an apprentice are abhorrent. It is of even greater concern that they are not denied, but shifted off to another employee. There is no denial by or on behalf of that employee in respect to this allegation.

CONCLUSION 105 The evidentiary findings above lead to the conclusion that there is no basis for intervention in the termination of employment.

106 I am satisfied that Mr Cook has been afforded procedural fairness and that the requirements of cl 7 of the Award have been adequately met.

107 The application is refused. Matter No IRC 2848 of 2004 is so concluded. oo0oo

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