| [2023] FWC 93 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Weston
v
Coal & Allied Mining Services Pty Limited
(U2022/9468)
DEPUTY PRESIDENT SAUNDERS |
NEWCASTLE, 13 JANUARY 2023 |
Application for relief from unfair dismissal – valid reason for dismissal – dismissal harsh – applicant reinstated without backpay.
Introduction
[1] Mr Paul Weston was employed by Coal & Allied Mining Services Pty Ltd (Coal & Allied) as a drill operator at the Mount Thorley Warkworth open cut coal mine (Mine) until his dismissal on 7 September 2022. Mr Weston was paid five weeks’ pay in lieu of notice on his dismissal. Mr Weston contends that his dismissal was harsh, unjust and unreasonable. Coal & Allied denies those allegations.
[2] I heard Mr Weston’s unfair dismissal case against Coal & Allied on 13 and 14 December 2022. Mr Weston gave evidence in support of his case. He also adduced evidence from Mr Gavin Worroll, Drill Operator, and Mr Allan Thompson, Drill Operator and Trainer and Assessor. Coal & Allied adduced evidence from Mr Darren Cahill, Dragline, Drill and Blast Supervisor, Mr Simon Merrick, Dragline Drill and Blast Superintendent, and Mr David Bennett, General Manager.
[3] Section 396 of the Fair Work Act 2009 (Cth) (Act) sets out four matters which I am required to decide before I consider the merits of the application.
[4] There is no dispute between the parties and I am satisfied on the evidence that:
(a) Mr Weston’s application for unfair dismissal was made within the period required in s 394(2) of the Act;
(b) Mr Weston was a person protected from unfair dismissal;
(c) the Small Business Fair Dismissal Code did not apply to Mr Weston’s dismissal; and
(d) Mr Weston’s dismissal was not a genuine redundancy.
Relevant facts
[5] Mr Weston previously operated dump trucks and other equipment at the Mine. At the time of his dismissal, Mr Weston principally worked as a drill operator. Mr Weston considered the move from dump truck operator to drill operator as progression to a better job at the Mine.
[6] The events which led to Mr Weston’s dismissal took place on 13 August 2022.
[7] Mr Weston worked day shift on 13 August 2022. He was initially assigned to operate drill 230. At about 10:30am, he was assigned to work on drill 233 because drill 230 was scheduled for in-pit maintenance and there would be two other operators operating drill 230 later in the day. Mr Weston did not operate drill 230 again after he was allocated to drill 233.
[8] At the conclusion of his shift Mr Weston performed what is known as “housekeeping” on drill 233. “Housekeeping” on a drill involves cleaning up any rubbish in the drill and giving the drill a wash down. It is not uncommon at the Mine for operators to be dissatisfied with the extent to which “housekeeping” has been performed on a piece of equipment before it is handed over to another operator on the next shift. The evidence reveals that the practice at the Mine for dealing with this type of issue is for the operator who is dissatisfied with the “housekeeping” performed by another operator to either raise the issue with the operator or raise it with their supervisor, who discusses it with the supervisor of the operator who has allegedly failed to perform “housekeeping” to the requisite standard. It is then a matter for the supervisor of the operator in question to address the issue with that operator. 1
[9] At about 5:40pm on 13 August 2022, Mr Weston was completing his day shift and Mr Williams was commencing his night shift. Mr Williams was, as usual, assigned to operate drill 230 during his night shift. Mr Weston was standing in the Mount Thorley Operations car park area on the Mine talking to Mr Worroll about relevant handover matters for drill 233. Mr Williams was walking on his way to have a handover discussion with the operator who had been working on drill 230 at the end of the day shift. Mr Williams had not, at this stage, seen drill 230 or the condition in which it had been left at the end of the day shift. Mr Williams saw Mr Weston talking to Mr Worroll. Mr Williams had previously complained to his supervisor about what he believed to be a failure on Mr Weston’s part to perform adequate “housekeeping” on drill 230. Mr Williams wanted to make a point to Mr Weston about his lack of adequate “housekeeping”. 2 There is no dispute that Mr Williams made his point, but there is a contest as to what he said and the order in which comments were made.
Interaction outside in the car park area
[10] Mr Weston contends that Mr Williams walked up to him and Mr Worroll and said words to the effect, “Why don’t you fuck off back to the trucks”. Mr Weston also contends that Mr Williams said to Mr Worroll words to the following effect:
“Don’t expect to have a clean drill. He’s a lazy cunt, he won’t clean it for you.”
[11] Mr Weston says that he then repositioned himself, as did Mr Worroll, away from Mr Williams as a means of ignoring Mr Williams. Mr Weston contends that Mr Williams then repositioned himself by coming around from behind him and moved so that he could look directly at Mr Weston. It is contended by Mr Weston that Mr Williams then said words to the effect, “You’re a lazy cunt and you don’t have five minutes to clean the drill”. Mr Weston says that he could no longer ignore Mr Williams. It is contended by Mr Weston that he had the following exchange with Mr Williams:
Mr Weston said: “Are you aware of the circumstances about the drill?”
Mr Williams said: “You’re a lying cunt.”
Mr Weston said: “Are you aware of the circumstances about the drill?”
Mr Williams said: “You’re a lying cunt.”
[12] Mr Weston also alleges that during the discussion Mr Williams responded to most things he said by calling him a “lying cunt”, “fat cunt” or “fat lazy cunt”.
[13] Mr Weston says that he then asked Mr Williams if he wanted to take it further, which Mr Weston says was a reference to having the matter dealt with by a supervisor or more senior manager. Mr Weston contends that at no time did he get aggressive with Mr Williams, swear at him, use derogatory language towards him, or touch him.
[14] The account set out in the previous four paragraphs is taken from Mr Weston’s witness statement. 3 When he was interviewed by Coal & Allied’s internal investigators on 17 August 2022, Mr Weston gave the following account of the incident before he and Mr Williams went to see the supervisor in the pre-start room:
“Talking to Gavin [Worroll]. Sandy [Williams] came out. He said “why don’t you fuck off back to the trucks you lazy cunt”…
[Mr Weston said] what are you on about?
[Mr Williams said] you couldn’t take 5 minutes to clean the drill out.
[Mr Weston said] I don’t know what drill you are talking about as I was on numerous drills.
[Mr Williams said] lazy cunt.
I walked up to him and said do you want to take it further.
He said yup.”
[15] In cross examination Mr Weston:
• gave inconsistent accounts as to the order in which the initial comments were made by Mr Williams. At two points during his cross examination Mr Weston stated that Mr Williams initially said to Mr Worroll, “Don’t expect a clean drill”. 4 At other times in his cross examination Mr Weston stated that Mr Williams’ first comment was that Mr Weston could “fuck off back to trucks”.5 Mr Weston ultimately accepted in cross examination that Mr Williams first made a comment to Mr Worroll about not expecting the drill to be clean before telling Mr Weston to “fuck off back to trucks”;6
• accepted that Mr Williams asked Mr Weston why he could not take five minutes to clean the drill, in response to which Mr Weston said, “Who cares?” 7 Mr Weston made this comment because sometimes Mr Williams leaves the drill dirty “and he doesn’t care”;8
• accused Mr Williams of not keeping the drills clean 9 and in response Mr Williams called him a “lying cunt”10 and said, for the second time, that if Mr Weston was not going to keep the drills clean he could fuck off back to trucks;11
• accepted that it is possible he walked towards Mr Williams and said what are you going to do about it. 12 Mr Weston would not be surprised at all if others recalled him making this comment;13
• accepted that it is possible that his stomach touched Mr Williams as he walked towards him; 14 and
• accepted that Mr Williams said, “Let’s take it inside” or “Let’s go and speak to the supervisor”. 15
[16] Mr Williams made a hand written statement on 13 August 2022. In that statement he gave the following account of his interaction with Mr Weston in the car park earlier that day:
“I walked up to Gavin [Worroll] while Paul [Weston] was standing next to Gavin and I said to Gavin, I bet your drill be dirty. He doesn’t know how to clean the drill rig.
As I was walking away Paul said its ok who cares. I was about 2m away and I stopped and turned around. I said well if you are not going to look after the drills and clean it, fuck off back to trucks.
Then Paul walked over and got in my personal space. I asked Paul to move back but he push his gut into me and said what are you going to do about it.
I said yes I’m not that silly to do anything. Let’s take this inside to the supervisors.”
[17] In his handwritten statement Mr Williams also asserted:
“… before Paul walked over to me the first time, he said I leave the drills dirty. I reply saying no I don’t and if I do I always make sure cab is clean and informed my supervisor or tell the next operator.”
[18] When he was interviewed by Coal & Allied’s internal investigators on 18 August 2022, Mr Williams gave answers which were consistent with his handwritten statement. In that interview Mr Williams also denied saying the words “lazy” or “cunt” when he said to Mr Weston that he could “fuck off back to trucks”.
[19] Mr Williams gave oral evidence about his interaction with Mr Weston in the car park which was consistent with his handwritten statement and his answers to the Coal & Allied internal investigators. In his oral evidence Mr Williams also denied that he said that Mr Weston was a liar or was lying, denied calling Mr Weston a “lazy cunt”, “fat cunt” or “fat lazy cunt”, and denied using the “c word” at all. 16 Mr Williams said in his oral evidence that he could not recall if he said to Mr Weston that he was “lazy”.17 Mr Williams accepted in his oral evidence that telling someone to “fuck off back to trucks” was not the way he normally spoke with his work colleagues.18
[20] Mr Worroll made a handwritten statement on 13 August 2022 about the incident. He stated:
“Paul [Weston] came over to back of ute to talk to me (Gavin). Straight after Sandy [Williams] came past and said something about the drill not clean in cab. Then there was an exchange of words can’t exactly recall what. But they walked towards each other.
There was a lot of people around and I (Gavin) turned away from Sandy & Paul & I spoke to Darren Duff. I heard nothing more. But they were heading into the office area.”
[21] Mr Worroll was interviewed by Coal & Allied on 18 August 2022. Amongst other things, Mr Worroll told the investigators that:
• he heard Mr Williams say, at the start of the incident outside, something about the drill being dirty;
• he heard Mr Williams say to Mr Weston words to the effect, “If you are not going to look after the drills and clean it, fuck off back to trucks you lazy cunt”.
• he saw Mr Weston walk towards Mr Williams but did not hear what Mr Weston said;
• he did not see whether Mr Weston and Mr Williams were physically touching during their interaction outside. Mr Worroll was talking to Mr Darren Duff;
• he heard Mr Williams say “let’s sort it out in the office”; and
• he did not consider the interaction between Mr Weston and Mr Williams outside to be aggressive or irate.
[22] Mr Worroll made a witness statement which was filed and served by Mr Weston in support of his case. In that witness statement Mr Worroll gave the following account of the event:
“6. On 13 August 2022, at approximately 5.40pm, I was speaking with the Applicant.
7. Mr Williams came over and approached the Applicant and I.
8. Mr Williams commenced by making a comment about the drills not being cleaned. The comment was said to me but was directed at the Applicant.
9. Mr Williams said words to the Applicant similar to “Fuck off back to trucks”. Mr Williams also called the Applicant “a lazy cunt”.
10. I turned away from Mr Williams, as did the Applicant.
11. Mr Williams moved his position and made further comments critical of the Applicant.
12. I turned away from Mr Williams and the Applicant. I went to speak with Mr Darren Duff. I continued to hear parts of the conversation between Mr Williams and the Applicant. I heard Mr Williams use the words “fucking lazy cunt”, “fat cunt” and “lying cunt” to the Applicant.
13. I provided the company with a statement. I did not refer to those comments as I did not wish to get Mr Williams terminated.
14. I attended an investigation on 18 August 2022… That investigation process involved me responding to questions. I recall I was asked if Mr Williams said to the Applicant the words “fuck off back to trucks” and “lazy cunt”. I said that I had heard that but had not put it in my statement.
15. From my observation, I did not see the Applicant touch Mr Williams.
16. From my observation, I did not see that the Applicant was aggressive or irate.
17. Mr Williams and the Applicant left. I understood they were going to see the supervisor, as I heard something like “Let’s sort it out in the office” and they walked towards the pre-start room where the supervisors would normally be located at that time. Mr Williams led the way and Mr Weston followed.”
[23] In his oral evidence Mr Worroll:
• confirmed that the first thing Mr Williams said when he approached Mr Worroll and Mr Weston was a comment about the drills not being cleaned. 19 Mr Williams then said, “Well, if you can’t clean drills you might as well fuck off back to the trucks”;20
• said that after the initial comments by Mr Williams, Mr Weston turned away from Mr Worroll to speak to Mr Williams and Mr Worroll spoke to Mr Darren Duffy. It was then hard for Mr Worroll to hear what Mr Weston was saying to Mr Williams; 21
• said that before Mr Weston turned away from him, Mr Worroll heard Mr Williams calling Mr Weston a “fucking lazy cunt”, “fat cunt” and “lying cunt”; 22
• recalled Mr Williams saying to Mr Weston, “He can’t take five minutes to clean the cab”, but did not hear any response from Mr Weston; 23
• said that at some point Mr Williams told Mr Weston that he was a “lazy cunt”; 24 and
• confirmed that Mr Williams said to Mr Weston, “Let’s sort it out in the office”. 25
[24] I did not find Mr Worroll to be a credible witness. Notwithstanding the fact that Mr Worroll was obliged to tell his employer the truth during the investigation, he did not do so. Mr Worroll told Coal & Allied in his handwritten statement that there “was an exchange of words can’t recall exactly what” and “I spoke to Darren Duff. I heard nothing more. But they were heading to the office area”. These statements are inconsistent with the witness statement made by Mr Worroll and his oral evidence in the Commission, where he gave evidence that he remembers what was said, including numerous inappropriate comments by Mr Williams towards Mr Weston. 26 Mr Worroll was also withheld relevant information when he was questioned by Coal & Allied’s investigators. Mr Worroll says he that did not provide additional information to Coal & Allied about what he heard on 13 August 2022 because he did not want to put Mr Weston or Mr Williams “at risk of losing their jobs”.27 Further, in his oral evidence Mr Worroll said that said that before Mr Weston turned away from him, he heard Mr Williams calling Mr Weston a “fucking lazy cunt”, “fat cunt” and “lying cunt”. Paragraph [12] of Mr Worroll’s witness statement suggests that such comments were made after Mr Worroll turned away from Mr Weston. It is also relevant that Mr Worroll did not provide any context as to when, or in response to what, Mr Williams allegedly called Mr Weston a “fucking lazy cunt”, “fat cunt” and “lying cunt”. These matters cast further doubt on Mr Worroll’s credibility. I formed the impression that in his evidence Mr Worroll exaggerated the extent to which Mr Williams provoked Mr Weston during their exchange in the car park area on 13 August 2022.
[25] Mr Thompson gave evidence that in the past Mr Williams has sworn at him and called him names such as “big dumb cunt”. I do not consider that Mr Thompson’s evidence should be given any weight in determining what happened between Mr Weston and Mr Williams on 13 August 2022. First, Mr Thompson was not at work on 13 August 2022. Mr Thompson’s evidence as to the derogatory comments made by Mr Williams to him in the past is properly characterised as tendency evidence. It is well accepted that tendency evidence may lead to unfair inferences being drawn about a person's conduct in the specific situation under consideration in a particular case. I do not consider that Mr Thompson’s evidence has significant probative value. 28 Secondly, Mr Thompson has had previous disputes with Mr Williams; there is plainly no love lost between Mr Thompson and Mr Williams.
[26] I make the following findings on the balance of probabilities and having regard to the Briginshaw standard about the interaction between Mr Weston and Mr Williams in the car park area at the Mine on 13 August 2022:
(a) Instead of participating in a handover discussion with the operator who had finished day shift on drill 230, Mr Williams stopped to speak to Mr Worroll and Mr Weston. Mr Williams’ purpose in doing so was to make a point, in an aggressive manner, that Mr Weston was not, in Mr Williams’ view, undertaking adequate “housekeeping” duties at the conclusion of his shift. 29 Mr Williams should not have done so. Mr Williams gave evidence that he had already raised the issue with his supervisor and he did not know whether his supervisor had raised it with Mr Weston’s supervisor.30 Mr Williams should have let the supervisors deal with the matter, or at least communicated with Mr Weston in a respectful manner.
(b) Mr Williams did not begin the conversation by saying, “Why don’t you fuck off back to the trucks?” Not only does it not ring true that the conversation would start in this way without anything else being said, but Mr Weston ultimately accepted in cross examination that the discussion did not commence in this way.
(c) Mr Williams commenced the discussion by saying to Mr Worroll words to the effect, “I bet your drill will be dirty. He doesn’t know how to clean the drill rig.” These comments were clearly directed at Mr Weston.
(d) Mr Williams then began to walk away. Mr Weston said, “Who cares?”
(e) Mr Williams turned around and said, “Well if you are not going to look after the drills and clean it, fuck off back to trucks”.
(f) Mr Weston then accused Mr Williams of leaving the drills dirty. Mr Williams denied the allegation and accused Mr Weston of being lazy and lying. I am satisfied that Mr Williams accused Mr Weston of being lazy and lying because (i) Mr Williams clearly holds strong views about the requirement to undertake “housekeeping” at the end of a shift, (ii) Mr Williams was plainly frustrated about what he considered to be an ongoing failure on Mr Weston’s part to undertake his “housekeeping” duties, (iii) Mr Weston and Mr Worroll gave consistent evidence on this point, and (iv) Mr Williams stated in his oral evidence that he could not recall if he said to Mr Weston that he was “lazy”, 31 in contrast to his denials of many other allegations.
(g) Mr Weston then walked towards Mr Williams and came close to him. I accept that Mr Weston’s stomach was just touching Mr Williams, but this was not intentional on Mr Weston’s part. Mr Williams gave consistent evidence that Mr Weston’s stomach touched him and he complained about it to Mr Cahill a few moments later. Mr Weston also accepted in his oral evidence that his stomach touched Mr Williams as he walked towards him. 32
(h) Mr Weston then said words to the effect, “What are you going to do about it?” Mr Williams gave evidence to this effect and Mr Weston accepted in cross examination that he may have said this and would not be surprised if others recalled him making this comment. 33
(i) Mr Williams said that he was “not that silly to do anything. Let’s take this inside to the supervisors”.
(j) Mr Williams then walked towards the supervisors and Mr Weston followed.
(k) I am not persuaded that Mr Williams called Mr Weston a “lazy cunt”, “fat cunt”, “lazy fat cunt” or “lying cunt” in the car park area at the Mine. Neither Mr Weston nor Mr Worroll gave persuasive or consistent evidence as to when or in what context these derogatory comments were allegedly made. Further, Mr Weston’s contention that these types of comments were repeatedly made by Mr Williams in a non-responsive manner to statements made by Mr Weston does sit well with the findings I have made above in relation to the way in which the discussion flowed, in a responsive way, back and forth between Mr Williams and Mr Weston.
Interaction inside the pre-start room
[27] Mr Williams and Mr Weston walked inside the pre-start room to take their dispute to a supervisor. Mr Williams located his supervisor, Mr Cahill. There is a dispute as to what was then said by Mr Williams and Mr Weston.
[28] Mr Weston contends in his witness statement that the interaction inside was as follows:
“64. I followed Mr Williams to Mr Cahill and when I arrived, Mr Williams said to Mr Cahill words that were something like:
“The fat cunt’s leaning into me with his gut, trying to intimidate me.”
65. Those comments of Mr Williams were untrue. Mr Williams had spent the entire time we had spoken calling me names, personally attacking me and being verbally offensive towards me.
66. I became angry. I could no longer take Mr Williams’ abuse.
67. I had not, in the time I worked at the Mine, been spoken to in that fashion.
68. I became angry by those comments, especially by being repeatedly called a “lying cunt”, “a fat cunt”, “a fat lazy cunt” and also being told to “fuck off back to the truck”.
69. I said to Mr Williams words to the effect of:
“If you call me a lying cunt again, I’ll cut your throat.”
70. I did not touch Mr Williams, nor attempt to grab him, push him or assault him. I was, however, upset and angry. I did not want Mr Williams to abuse me again.
71. The B Crew supervisor, I recall, put his hand out between myself and Mr Williams and said words to the effect of:
“Righto, that is enough. Cut it out. That will do.”
72. I then left. I went to my supervisor’s office and spoke to Ms Corliss. I reported to Ms Corliss what had occurred, including the comment I had made to Mr Williams. Ms Corliss told me to stay by my phone as she suspected something would come from what had happened.”
[29] In his interview with Coal & Allied investigators on 17 August 2022, Mr Weston gave the following account of the incident inside the pre-start room:
“He [Mr Williams] spoke to spoke to Mr Cahill and said this fat cunt is leaning on me trying to intimidate me. I want to take it further.
[Mr Weston] Were you aware of the circumstances throughout the shift?
[Mr Williams] The fat cunt’s also a lying cunt too.
[Mr Weston] Call me a lying cunt again & I’m going to cut your throat.
Turned around and walked away. Spoke to Jo…”
[30] During cross examination Mr Weston:
(a) gave evidence that he remembers Mr Williams using the word “fat” in his initial comment to Mr Cahill, but is not sure whether the expression was “fat cunt”, “he’s leaning on me with his fat gut”, or “the fat cunt’s leaning on me with his fat guts”; 34
(b) accepted that he does not recall the exact words that were said nor the order in which they were said; 35
(c) stated that he does not recall stepping towards Mr Williams when he made the threat to cut his throat, but if he did he may have been getting out of someone’s way or he may have been bumped; 36
(d) accepted that he does not recall getting bumped in the pre-start room; 37
(e) gave evidence that he recalls Mr Cahill putting his hand up, but does not recall Mr Cahill pushing him back; 38
(f) stated that “there was never any intent for physical harm. The only reason that I said it [the threat] was to get him to stop the abuse that he was directing at myself”; 39
(g) accepted that although he talks to his “army buddies” in the same way that he spoke to Mr Williams on 13 August 2022, Mr Williams might not talk to people in that way and may have been worried about his safety; 40
(h) accepted that threatening a violent act towards someone is intimidatory and constitutes a breach of the Code of Conduct, Yancoal’s Workplace Behaviour and Disciplinary Action Procedure and his obligation to ensure that his conduct does not put at risk the health and safety of his co-workers; 41 and
(i) said that if he was given the opportunity to do so, he would apologise to Mr Williams directly, in addition to the apology he has already given to Coal & Allied. 42
[31] Mr Williams included the following account in his handwritten witness statement made on 13 August 2022:
“As I was explaining what happened outside to Darren Cahill, my supervisor, Paul [Weston] said if Sandy [Williams] says it again, that I should fuck off back to trucks, I’ll cut his throat.
Darren [Cahill] said hey you can’t speak like that Paul.
Paul walked into my face again. I asked him to get out of my personal space.
Darren calm the situation and I walked away to do my hand over. After the other crew left I went and spoke to Darren.”
[32] In his interview with the Coal & Allied investigators Mr Williams:
(a) denied referring to Mr Weston as a “fat cunt” or “lying cunt”;
(b) cannot recall if he was asked about calling Mr Weston a liar, notwithstanding that the notes made by at least one of the investigators suggests that Mr Williams accepted that he may have said that Mr Weston was lying;
(c) said that he was about one foot away from Mr Weston during this incident. Mr Weston walked towards Mr Williams and he stepped back; and
(d) stated that he was concerned for his safety and the safety of others.
[33] Mr Williams gave oral evidence to the following effect about his interaction with Mr Weston inside the pre-start room:
(a) Mr Williams denied saying that Mr Weston was a liar; 43
(b) Mr Williams denied referring to Mr Weston as being “fat”; 44
(c) Mr Williams said that Mr Weston was about two feet away from him after he moved towards him in the pre-start room; 45
(d) Mr Williams thought that Mr Weston was going to engage in a violent act towards him in the pre-start room; 46
(e) Mr Williams accepted that the inappropriate comments made by Mr Weston to him were made for the purpose of stopping Mr Williams from doing something in the future; 47
(f) the interaction inside the pre-start room took about 30 seconds to one minute; 48
(g) prior to the incident on 13 August 2022, Mr Williams explained that the only issue between himself and Mr Weston related to dirty equipment. Mr Williams further explained that his relationship with Mr Weston was civil, they tolerated each other, they treated each other with respect and never had a drama talking to each other; 49
(h) Mr Williams had never heard of Mr Weston acting in an aggressive manner at work prior to 13 August 2022; 50 and
(i) Mr Williams accepted that the way in which Mr Weston acted on 13 August 2022 was out of character from the way Mr Weston normally handles himself at work. 51
[34] Mr Cahill made a witness statement which was filed and served by Coal & Allied. It includes the following account of the incident inside the pre-start room:
“7. On 13 August 2022, I was in the pre-start room at the commencement of my shift, when I was approached by an operator on my crew, Alexander Williams, and Mr Weston who is an operator on D crew which had just completed their shift. Both were very upset at the time.
8. Mr Williams said words to the effect of:
“This bloke’s been intimidating me. He pushed his gut into me.”
9. Mr Weston then said words to the effect of:
“If this bloke says to go back to the trucks one more time I will cut his fucking throat.”
Mr Weston’s tone was aggressive. It took me by surprise. I have not seen him like that before.
10. At no point did Mr Weston look at me when he said this. He was very agitated and focussed on Mr Williams.
11. Mr Weston and Mr Williams were standing close to each other. They were about my body width apart. I was roughly in between them but slightly off to the side. They were not physically touching but Mr Weston was moving closer to Mr Williams and was staring him down.
12. I was worried that things were going to escalate so I put my hand out between them and gently guided Mr Weston backwards with the flat part of my hand. My intention was to try and keep them at arm’s length. During the course of the interaction I did this twice as after the first time Mr Weston began to move closer towards Mr Williams again.
13. After Mr Weston said that he would “cut his fucking throat” I said words to Mr Weston words [sic] to the effect of:
“Hang on, calm down. Paul you can’t say that mate, just calm down.”
14. After continuing to discuss things with them, they separated after a little while and both walked away. Mr Williams walked back out the door that he entered and Mr Weston walked through the door to the office.
…
23. I refer to paragraph 86 of Mr Weston’s statement. I refer to my response at paragraph 12 above, and say that I did physically intervene and separate Mr Weston from Mr Williams twice. Mr Weston was agitated and aggressive at this time. He was staring down Mr Williams and was focusing on him.”
[35] Mr Cahill’s handwritten statement dated 13 August 2022 is consistent with the witness statement made by him in the proceedings before the Commission. In his interview with the Coal & Allied investigators on 18 August 2022, Mr Cahill, amongst other things:
(a) said that he did not think Mr Williams used the words “This fat cunt leant on me and tried to intimidate me and I want to take it further”;
(b) denied that Mr Williams referred to Mr Weston as a “fat cunt” or a “lying cunt”;
(c) denied that Mr Weston said to Mr Williams, “Call me a lying cunt again and I will cut your throat”; and
(d) said that Mr Weston was creeping up on Mr Williams.
[36] During his oral evidence in chief Mr Cahill said that he wished to amend paragraph 9 of his witness statement by deleting the word “fucking” from the quote. Mr Cahill also explained in his oral evidence that:
(a) when he told the Coal & Allied investigators that he did not think Mr Williams used the words “This fat cunt leant on me and tried to intimidate me and I want to take it further”, he meant that Mr Williams did not say such words. 52 Mr Cahill says his memory on this point is very clear;53
(b) he does not recall the word “fat” or words such as “fat cunt” being used by Mr Williams; 54
(c) Mr Williams did not call Mr Weston a “liar” or a “cunt”; 55
(d) he was a little bit concerned during the interaction that Mr Weston would grab Mr Williams. 56 His concern arose because Mr Weston was very cranky and was staring down Mr Williams when he made the threat to Mr Williams;57
(e) the interaction between Mr Weston and Mr Williams took, at most, a couple of minutes; 58
(f) Mr Rutherford was standing behind Mr Cahill when the interaction between Mr Weston and Mr Williams took place. He therefore does not know how Mr Rutherford could have heard more clearly than him what was said by Mr Weston and Mr Williams; 59
(g) Mr Weston was so focused on Mr Williams that he did not seem to notice that Mr Cahill was pushing him back gently with the back of his hand. Mr Weston did not try to push through Mr Cahill’s hand. When Mr Cahill guided Mr Weston back, he stepped back about a foot. However, Mr Cahill had to guide him back twice with the back of his hand; 60
(h) he has never heard Mr Williams call anyone a “cunt” at work; 61 and
(i) he has worked with Mr Weston in a supervisory capacity in the past. Mr Cahill has never known Mr Weston to be verbally or physically aggressive. 62 He considers that Mr Weston’s conduct on 13 August 2022 was uncharacteristic for him.63 He had no prior issues with Mr Weston and would have said good things about him if he had been asked by management after the incident, but he was not asked.64
[37] Mr Rutherford was present in the pre-start room during the altercation between Mr Weston and Mr Williams. Mr Rutherford gave the following account of the incident in his handwritten statement made on 13 August 2022:
“Alexander [Williams] walked into the muster room closely followed by Paul [Weston]. Alexander complained that Paul was threatening to cut his throat after Alexander threatened to send Paul back to the trucks for not cleaning the cab of the drill. Paul was visibly shaking and pointing to Alexander while saying this comment. Darren asked them both to calm down and think about their actions.”
[38] Mr Rutherford was interviewed by Coal & Allied during its investigation into the incident. The information he gave to the interviewers included the following:
(a) when he was asked whether Mr Williams said words to the effect, “This fat cunt leant on me and tried to intimidate me and I want to take it further”, Mr Rutherford replied “fat c-word & pushed gut on me & in my face”;
(b) he could not recall whether Mr William said about Mr Weston that “the fat cunt is also a lying cunt as well”; and
(c) Mr Weston was acting aggressively, visibly shaking, pointing and very upset. Mr Williams was vocal.
[39] Mr Rutherford was also ordered to attend the hearing to give evidence, at the request of Mr Weston. The oral evidence given by Mr Rutherford included the following:
(a) both Mr Williams and Mr Weston were very agitated when they entered the pre-start room; 65
(b) he recalls Mr Williams saying, when they first arrived in the pre-start room, that Mr Weston had already threatened to cut his throat; 66
(c) he recalls Mr Williams using the words “fat cunt” and “fat guts”; 67
(d) he does not recall Mr Weston saying anything about being called a “lying cunt”. 68 Nor does he recall Mr Williams calling Mr Weston a “lying cunt”;69
(e) Mr Weston was about half a metre away from Mr Williams during the incident. 70 Mr Weston did not try to make contact with Mr Williams. Mr Weston used an open hand to point towards Mr Williams;71
(f) he saw Mr Cahill put his hand out between Mr Weston and Mr Williams but does not recall Mr Cahill making contact with anybody with his hand; 72
(g) the interaction between Mr Weston and Mr Williams took about one to one and a half minutes; 73 and
(h) Mr Williams and Mr Weston had a pretty poor working relationship and did not get along. 74
[40] I found Mr Cahill to be the most credible and reliable witness to the events which took place inside the pre-start room on 13 August 2022. Mr Cahill had a good recollection of what was said and the order in which statements were made. He answered questions put to him in his oral evidence in a direct and consistent manner. He holds no ill-will against Mr Weston or Mr Williams. Although I accept that Mr Rutherford was doing his best to tell the truth, I do not consider that his evidence as to what was said in the pre-start room is reliable. Mr Rutherford is the only witness who contends that the threat by Mr Weston to cut Mr Williams’ throat took place outside, before the verbal interaction in the pre-start room. This is a crucial part of the sequence of relevant events. An unreliable memory in relation to this comment causes me to have serious concerns about the reliability of Mr Rutherford’s evidence concerning other parts of the conversation. In addition, Mr Rutherford was behind Mr Cahill during the verbal altercation between Mr Weston and Mr Williams in the pre-start room. Finally, both Mr Weston and Mr Williams were agitated during their very brief verbal altercation in the pre-start room and they are not impartial witnesses to the event. I therefore prefer the evidence of Mr Cahill to that given by Mr Weston and Mr Williams where there is inconsistency between such evidence.
[41] I make the following findings on the balance of probabilities and having regard to the Briginshaw standard about the interaction between Mr Weston and Mr Williams in the pre-start room at the Mine on 13 August 2022:
(a) Mr Williams and Mr Weston approached Mr Cahill in the pre-start room. Both Mr Williams and Mr Weston were very upset at the time.
(b) Mr Williams said to Mr Cahill, “This bloke’s been intimidating me. He pushed his gut into me.” Mr Cahill gave consistent evidence to this effect.
(c) Mr Weston then said in an aggressive tone, “If this bloke says to go back to the trucks one more time I will cut his throat.” Mr Cahill gave evidence to this effect. Mr Williams’ account was very similar. Mr Weston’s account differed, principally in the introductory words. Mr Weston contends that he prefaced the threat by referring to the contingency that Mr Williams may call him a liar again. This evidence is inconsistent with the evidence given by Mr Cahill and Mr Williams. Further, the main point of controversy between Mr Weston and Mr Williams in the car park area arose when Mr Williams told Mr Weston that he could “fuck off back to trucks”. Given that Mr Weston viewed the change in his role from truck operator to drill operator as progression to a better job, it stands to reason that Mr Weston would have been upset by being told to “fuck off back to trucks”. In my view, this context adds to the likelihood that Mr Weston prefaced the threat to cut Mr Williams’ throat with a comment about being told to go back to trucks.
(d) Mr Cahill said, “Hang on, calm down. Paul you can’t say that mate, just calm down.” There is general agreement amongst the witnesses that words to this effect were said by Mr Cahill.
(e) Mr Weston did not touch Mr Williams. But he was pointing at Mr Williams with an open hand, staring him down and creeping towards him as he made the threat to “cut his throat” if he was told to “go back to trucks” again. Mr Weston came to a position which was about two feet from where Mr Williams was standing. Mr Weston was very agitated. He was shaking. There is broad agreement amongst most of the witnesses about these matters.
(f) I accept Mr Weston’s unchallenged evidence that he did not have any intention of killing Mr Williams. He made the comment because he was angry and wanted Mr Williams to stop saying what he was saying.
(g) On two occasions, Mr Cahill put his hand between Mr Weston and Mr Williams and used the back of his hand to gently guide Mr Weston back away from Mr Williams. Mr Weston did not attempt to push through Mr Cahill’s hand or otherwise physically assault Mr Williams in the pre-start room. Although Mr Weston does not recall Mr Cahill using his hand to gently guide him back, Mr Weston was very agitated and was focused on Mr Williams. Mr Rutherford did not see Mr Cahill touch Mr Weston with his hand, but that is understandable in circumstances where Mr Rutherford was positioned directly behind Mr Cahill. I consider that Mr Cahill is in the best position to recall whether the back of his hand touched Mr Weston as he was gently guiding him backwards.
(h) Mr Williams was concerned for his safety and the safety of others. Mr Cahill was concerned that Mr Weston may have grabbed Mr Williams. I accept the truth and reliability of this evidence given by Mr Cahill and Mr Williams. It accords with the words that were spoken and the demeanour of Mr Weston during the incident.
(i) Mr Williams did not call Mr Weston a “cunt”, “lazy cunt”, “lazy”, “fat cunt” or “fat” in the pre-start room. I prefer Mr Cahill’s evidence in relation to these matters over evidence to the contrary.
(j) The interaction between Mr Weston and Mr Williams in the pre-start room took about one minute. All witnesses agree with this finding.
(k) After the interaction Mr Weston and Mr Williams walked away through different doors in the pre-start room. They did not have to be directed away and neither of them was directed to go and see a supervisor. Although a comment was made about Mr Weston being “directed by Supervision into a spare office” in Coal & Allied’s investigation report, the evidence before the Commission was consistent with the finding I have made in relation to these matters.
(l) Mr Williams did not commence the discussion inside the pre-start room by saying that Mr Weston had already threatened to cut his throat. Mr Rutherford is the only witness who recalled the events this way. All the other witnesses say the threat to “cut his throat” took place in the pre-start room.
Was the dismissal harsh, unjust or unreasonable?
[42] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Weston’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.
General principles
[43] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 75 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”76 and should not be “capricious, fanciful, spiteful or prejudiced.”77
[44] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 78 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).79
[45] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred.80 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 81
[46] The employer bears the evidentiary onus of proving that the conduct on which it relies took place. 82 In cases such as the present where allegations of serious misconduct are made, the Briginshaw standard applies so that findings that an employee engaged in the misconduct alleged are not made lightly.83
Application of principles to facts
[47] I am satisfied on the evidence that Coal & Allied had a valid reason to terminate Mr Weston’s employment on the basis of his conduct at the Mine on 13 August 2022. Mr Weston’s conduct on that day in acting in an aggressive manner and making a threat to cut the throat of a co-worker if he said something in the future was clearly inappropriate and breached his obligations:
(a) under Coal & Allied’s Code of Conduct not to harass or intimidate employees and to conduct himself in an appropriate manner and demonstrate respect for others at all times;
(b) under the Yancoal Workplace Behaviour and Disciplinary Action Procedure not to engage in unacceptable behaviour which may have an adverse effect on the well-being of employees; and
(c) under s 28 of the Work Health and Safety Act 2011 (NSW) to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons and co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
[48] That Coal & Allied had a sound, defensible and well-founded reason to terminate Mr Weston’s employment weighs against Mr Weston’s contention that his dismissal was harsh, unjust and unreasonable.
[49] There is no dispute, and I am satisfied on the evidence, that Mr Weston was notified of the reasons for his dismissal.
[50] During the investigation process Mr Weston was given opportunities to respond, and did in fact respond, to the reasons for his dismissal. In particular:
(a) Mr Weston responded to Coal & Allied’s allegations in his interview with investigators on 17 August 2022; and
(b) Mr Weston responded to Coal & Allied’s show cause letter in his letter of 1 September 2022.
[51] I do not accept Mr Weston’s contention that he was not given a full opportunity to respond on the basis that Coal & Allied did not take up his request, in his show cause response, for an “opportunity to speak with you [the Mine Manager] further in person to explain my circumstances”. Mr Weston’s response to the show cause letter is detailed and articulate. It is clear from Mr Weston’s response to the show cause letter that he had the ability and skills to be able to explain, in writing, his circumstances to Coal & Allied, notwithstanding that those circumstances included difficult matters concerning Mr Weston’s PTSD and its effect on him.
[52] Having regard to all the circumstances, I am satisfied that Mr Weston was given an opportunity to respond to the reasons for dismissal which related to his conduct.
Unreasonable refusal to allow a support person (s 387(d))
[53] There is no dispute, and I am satisfied on the evidence, that there was not any unreasonable refusal by Coal & Allied to allow Mr Weston to have a support person present to assist in any discussions relating to his dismissal.
Warnings of unsatisfactory performance (s 387(e))
[54] Mr Weston was not dismissed for unsatisfactory performance. This criterion is not relevant to the present case.
Size of enterprise and absence of human resource specialists or expertise (s 387(f) and (g))
[55] Coal & Allied is a substantial enterprise. It has human resource management specialists and expertise. In all the circumstances, I am satisfied that neither the size of Coal & Allied’s enterprise nor any absence of human resource management specialists or expertise had any impact on the procedures followed in effecting Mr Weston’s dismissal.
Other relevant matters
[56] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[57] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post in the following terms (references omitted): 84
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”. That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”
Length and quality of Mr Weston’s service with Coal & Allied
[58] Mr Weston was employed by Coal & Allied for about 12 years. He had an unblemished employment record with Coal & Allied, having never been given a warning or been subjected to any disciplinary action.
[59] Mr Weston’s conduct on 13 August 2022 was the first time he had acted in an aggressive manner at work. His conduct on that day was uncharacteristic when compared to his usual behaviour in the workplace.
[60] Mr Cahill, who had been Mr Weston’s direct supervisor in the past, had no issues with Mr Weston and would have said good things about him if he had been asked by the General Manager or other managers at the Mine. I accept Mr Weston’s unchallenged evidence that his supervisor, Ms Corliss, said to him in his last performance appraisal words to the effect, “I wish I had a crew of Paul Westons”. 85
[61] These matters weigh in support of Mr Weston’s contention that his dismissal was harsh.
Contrition, remorse and apology
[62] I accept that Mr Weston was contrite, remorseful and apologised during the investigation process for his actions. I also accept that immediately after the incident Mr Weston spoke to his supervisor and reported the circumstances to her, including the threatening comment he had made to Mr Williams. These matters weigh in support of Mr Weston’s argument that his dismissal was harsh.
PTSD
[63] I accept Mr Weston’s uncontested evidence that he suffers from PTSD as a result of his active service in Somalia as a member of the Australian defence force. I also accept Mr Weston’s uncontested evidence that his PTSD has resulted in him suffering from depression, anxiety and anger management issues. Mr Weston’s firsthand evidence about his condition and the impact it has on him is supported by his GP Mental Health Care Plan Patient Assessment, which describes his “current mental health issues” as “PTSD/Anxiety/Anger bursts” and his diagnosis as “PTSD/Anger”. 86 I do not have any hesitation in finding that Mr Weston’s PTSD was a contributing factor to the way in which he conducted himself during his interaction with Mr Williams on 13 August 2022. I do not require expert medical evidence to make this finding.
[64] To his credit, for a number of years Mr Weston has taken active and regular steps to manage his PTSD and its effects on him. This involves him taking medication prescribed by his doctor and attending regular counselling sessions, which include the teaching of techniques to manage his anger management condition associated with his PTSD. The fact that Mr Weston did not, during his 12 years of service with Coal & Allied, have any anger-related or other conduct issues at work demonstrates that, save for on 13 August 2022, he was able to manage his PTSD condition well.
[65] The fact that Mr Weston suffers from PTSD does not excuse his conduct on 13 August 2022, but it does provide relevant context and helps to explain why Mr Weston conducted himself in the way that he did on 13 August 2022. In my view, these mitigating matters support Mr Weston’s argument that his dismissal was harsh in all the circumstances.
Provocation
[66] There is no doubt that Mr Williams instigated the incident with Mr Weston on 13 August 2022 and provoked him into responding. Mr Williams had raised his concern about the alleged lack of “housekeeping” on Mr Weston’s part with his supervisor. Mr Williams should have let his supervisor deal with the matter, or at least spoken to Mr Weston in a respectful manner. He did not. Instead of proceeding to speak with the operator of drill 230 for a handover at the start of his shift on 13 August 2022, Mr Williams stopped to make a comment to Mr Worroll which was clearly directed at Mr Weston. Mr Williams then inflamed the situation further by telling Mr Weston that he could “fuck off back to trucks” if he did not look after the drills and clean them. This undoubtedly provoked a response from Mr Weston.
[67] While it might be argued that there was a gap in time between Mr Williams telling Mr Weston to “fuck off back to trucks” in the car park area and the incident inside the pre-start room when Mr Weston threatened to “cut his throat”, the two incidents were closely related in time and location. Mr Williams and Mr Weston went into the pre-start room immediately after their altercation outside to take up the matter with a supervisor. As soon as they arrived in the pre-start room they located Mr Cahill and the verbal altercation between Mr Williams and Mr Weston continued. Having regard to all the circumstances, I am satisfied that Mr Williams’ conduct in the car park area of the Mine provoked Mr Weston’s aggressive response in the car park area and inside the pre-start room.
[68] As is the case with a physical altercation at work, 87 provocation is not a defence to the making of a verbal threat. However, it is relevant to have regard to whether the verbal threat was the result of provocation by another employee in assessing the overall seriousness of the conduct which led to the employee’s dismissal.
Personal circumstances
[69] Mr Weston is 50 years of age. He is married with two children aged 11 and 14. Mr Weston’s wife works in a full-time position but earns considerably less than he did in his employment with Coal & Allied. They live in the Hunter Region and have two home loans over their family home and an investment property in Queensland.
[70] Mr Weston has not been able to obtain employment since his dismissal on 7 September 2022. He believes that it will be difficult for him to obtain alternative employment in the mining industry or elsewhere in light of the reasons for his dismissal from Coal & Allied, his PTSD, and his age. I consider those concerns to have a reasonable basis, particularly insofar as they relate to the mining industry. I accept that Mr Weston’s dismissal will have a negative impact on his personal and financial circumstances. These matters weigh in support of Mr Weston’s argument that his dismissal is harsh in all the circumstances.
Seriousness of the conduct
[71] The mitigating factors to which Mr Weston points, and which weigh in favour of his contention that his dismissal was harsh, must be balanced against the gravity of the conduct in which he engaged and all other relevant factors in reaching an overall assessment as to whether the dismissal was harsh, unjust or unreasonable.
[72] Coal & Allied operates in a safety critical industry. Employees at the Mine often work on their own or some distance away from supervisors and other managerial employees. They operate large, expensive and dangerous pieces of plant and equipment. Mr Bennett, the General Manager of the Mine, explained the impact of these considerations in the following way in his witness statement: 88
“45. I was also concerned that Mr Weston has not been able to control his emotions in the circumstances, and that he had not been able to do so on this occasion when a supervisor was standing by. I had concerns for his ability to do so in other circumstances and the risk this would pose to the health and safety of other workers. Given the duty of care that CAMS has, and the obligations it has under the safety and other legislation, I need to be confident that maintaining the employment of an employee will not pose a threat to others. I was not satisfied of that in the case of Mr Weston given the events on 13 August 2022.
46. It is of critical importance that employees comply with the Code of Conduct, other Yancoal policies, and also relevant laws and regulations in place. This is for reasons of safety and also that employees can attend for work at a workplace free from bullying and harassment. As General Manager, I need to have trust that all employees and contractors will comply with codes, policies, procedures and laws, particularly in the context of hazardous mining operations. I need to be able to trust that all those working onsite will make appropriate choices about how they conduct themselves towards their co-workers and more generally in the workplace. I no longer had the required degree [sic] trust and confidence in Mr Weston, given the way he conducted himself in the altercation with Mr Williams.”
[73] Mr Weston’s aggressive conduct towards Mr Williams on 13 August 2022 in the car park area and in the pre-start room was intentional. It included coming within close proximity to Mr Williams, making challenging remarks such as “What are you going to do about it?”, and making a threat to cut Mr Williams’ throat if he said something again in the future. I accept that Mr Williams was genuinely concerned for his safety and the safety of others who may be impacted by conduct of a similar kind by Mr Weston. However, as I have stated, I do not believe that Mr Weston had an actual intention to cut Mr Williams’ throat. In my view, he was angry and wanted Mr Williams to stop suggesting that he should be sent back to drive trucks. While Mr Weston acted in an aggressive and threatening manner towards Mr Williams, he refrained from engaging in a physical altercation with Mr Williams, apart from unintentionally touching Mr Williams with his stomach in the car park area. Having regard to all the circumstances, my assessment is that Mr Weston’s conduct on 13 August 2022 was clearly inappropriate and of a serious nature.
Comparative unfairness
[74] The written submissions filed on behalf of Mr Weston included a contention that Coal & Allied’s differential treatment of Mr Williams weighs in favour of a finding that Mr Weston’s dismissal was harsh. Mr Williams was given a final written warning for his conduct on 13 August 2022. Mr Williams had two previous warnings for breach of a ‘golden’ safety rule (2015) and causing equipment damage (2014).
[75] In Darvell v Australian Postal Corporation,49 the Full Bench made the following comments in relation to the question of differential treatment between employees (references omitted):50
“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton's case, his Honour said:
“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …
[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”
[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.
[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:
“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that 'there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable.”[Footnotes omitted]
[24] We respectfully concur with their Honours.”
[76] In the present case, Mr Williams behaved inappropriately by unnecessarily provoking Mr Weston and telling him to “fuck off back to trucks”. However, Mr Weston’s conduct was of a different and more serious character. He acted in an aggressive manner towards Mr Williams and threatened to “cut his throat” if Mr Williams said something again. On any objective assessment, Mr Weston’s conduct was more serious than Mr Williams’ conduct on 13 August 2022. In the circumstances of this case, the differential treatment of Mr Weston compared to Mr Williams did not, in my view, render Mr Weston’s dismissal harsh, unjust or unreasonable.
Significant mitigating factors
[77] Coal & Allied relies on the following ‘guidance’ provided by the Full Bench in DP World Sydney Limited v Lambley: 89
“In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.”
[78] This approach has, however, been criticised in a number of subsequent Full Bench decisions and judgments of the Federal Court. 90 The correct approach is to consider all the relevant circumstances and make a broad evaluative judgment as to whether the dismissal was harsh, unjust or unreasonable.91
Conclusion on harsh, unjust or unreasonable dismissal
[79] After considering each of the matters specified in section 387 of the Act, my evaluative assessment is that Coal & Allied’s dismissal of Mr Weston was not unjust or unreasonable, but it was harsh.
[80] The dismissal was not unjust or unreasonable because Coal & Allied had a valid reason for the dismissal and it afforded procedural fairness to Mr Weston prior to making a decision to bring his employment to an end.
[81] However, my assessment is that the dismissal was harsh in both of the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd. 92 That is, the dismissal was “harsh in its consequences for the personal and economic situation of the employee” and “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” I have reached this conclusion having regard to all the circumstances of the case, but particularly Mr Weston’s unblemished 12 year record of employment with Coal & Allied, his contrition, apology and remorse, the fact that the incident on 13 August 2022 was a brief and isolated incident which did not involve any physical violence, Mr Weston’s PTSD and the steps he has taken to manage that condition, the provocation by Mr Williams, and my assessment that Mr Weston is unlikely to be able to obtain alternative employment in the mining industry in light of the reason for dismissal on which Coal & Allied acted.
[82] I therefore find that Coal & Allied’s dismissal of Mr Weston was unfair.
Remedy
[83] Having found that Mr Weston was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Weston seeks the remedy of reinstatement. As a result, I need to consider whether reinstatement of Mr Weston would be appropriate or inappropriate.
[84] Coal & Allied submits that orders for reinstatement, continuity of service and back-pay would not be appropriate because Mr Weston’s conduct had led, and ought lead, to a loss of trust and confidence in him as an employee.
[85] Coal & Allied submits that it needs to have trust and confidence in its employees to comply with its policies and procedures, and applicable laws. This includes as to how employees conduct themselves with co-workers, as well as confidence that they will follow policies and procedures to enable Coal & Allied to meet its legal obligations under harassment and safety laws.
[86] Coal & Allied also submits that the safety obligations placed on it are of particular significance given it operates a business in an inherently hazardous industry. It is submitted that the importance of safety in the black coal industry has been repeatedly recognised by the Commission and other industrial courts and tribunals. Coal & Allied further submits that given the strict nature of the responsibilities it has under work health and safety legislation, the Commission should not order reinstatement or re-employment of Mr Weston where doing so would place Coal & Allied at risk of breach of its obligations to other employees under those laws, and would pose a risk to the health and safety of other workers at the Mine. In support of these submissions Coal & Allied relies on the evidence given by Mr Bennett in his witness statement 93 and orally before the Commission.
[87] A Full Bench examined the relevant principles concerning an alleged loss of trust and confidence in the context of an application for reinstatement in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (references omitted): 94
“[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:
• Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
• Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
• An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
• The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
• The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”
[88] Put another way, it is relevant when assessing the appropriateness of an order for reinstatement to consider whether Mr Weston has demonstrated sufficient understanding that his behaviour during the incident on 13 August 2022 was inappropriate and unacceptable such as to give rise to a sufficient level of confidence that conduct of that type will not recur if he is reinstated and the employment relationship will be viable and productive. 95
[89] Having seen and heard Mr Weston give evidence, I am persuaded that he understands that his conduct on 13 August 2022 was inappropriate, unacceptable and must not be repeated. During both the investigation process and his evidence before the Commission Mr Weston showed contrition and accepted that he breached his obligations under applicable policies and laws. I accept that Mr Weston’s conduct during his interaction with Mr Williams on 13 August 2022 was uncharacteristic does not reflect the way in which he has engaged with his co-workers and managerial staff at the Mine for the past 12 years. Mr Weston is well regarded by at least two supervisors at the Mine. 96 These factors, together with Mr Weston’s reasonably long (12 years) period of unblemished service with Coal & Allied and the fact it would be obvious to Mr Weston that any further aggressive or angry behaviour in the workplace would almost inevitably lead to the termination of his employment, satisfy me that there is a sufficient level of trust and confidence to enable the employment relationship between Coal & Allied and Mr Weston in the mining industry (where safety is paramount) to be viable and productive. Further, having regard to these matters and Mr Weston’s ongoing treatment for PTSD, I consider that the likelihood of Mr Weston engaging in further aggressive or angry behaviour in the workplace is very low.
[90] In all the circumstances, my evaluative assessment is that the appropriate remedy in this case is an order under s 391 of the Act reinstating Mr Weston to the position in which was employed immediately before the dismissal. I also consider it appropriate to make an order under s 391(2)(a) to maintain the continuity of Mr Weston’s employment. However, I do not consider it appropriate to make any order for lost pay under s 391(3) of the Act. This is because Mr Weston must bear a substantial degree of responsibility for the financial consequences of his dismissal, including foregone income of approximately $26,109 in the period from the dismissal to the date of the hearing. 97 The absence of an order for lost pay will also reinforce to Mr Weston that his conduct during his interaction with Mr Williams on 13 August 2022 was inappropriate and must not happen again.
[91] A separate order [PR749629] will be issued giving effect to this decision.
DEPUTY PRESIDENT
Appearances:
Mr K Endacott, Industrial Officer of the CFMMEU, for the Applicant
Mr T Sebbens, Solicitor, for the Respondent
Hearing details:
2022.
13 and 14 December (by Microsoft Teams videoconference).
Printed by authority of the Commonwealth Government Printer
<PR749628>
1 PN819-823
2 PN1184-1185
3 Ex A1
4 PN246 & PN313
5 PN247-249 & PN316-317
6 PN320-321
7 PN329
8 PN324
9 PN326
10 PN342-346
11 PN331-334
12 PN350-351
13 PN352
14 PN358
15 PN357
16 PN1077-1080, PN1139, PN1223, PN1228-1232, PN1257, PN1268-1270, PN1278, PN1284-1285
17 PN1081 & PN1229
18 PN1209
19 PN613-614
20 PN626
21 PN632-644
22 PN693
23 PN645-657
24 PN658
25 PN701
26 PN667-676
27 PN677
28 Section 97(1)(b) of the Evidence Act
29 PN1184-1185
30 PN1187
31 PN1081 & PN1229
32 PN358
33 PN350-352
34 PN369-379
35 PN389
36 PN403
37 PN408
38 PN411
39 PN435
40 PN429-436
41 PN433-439
42 PN452-454 & PN462-465
43 PN1115
44 PN1085, PN1304-1305, PN1315, PN1325
45 PN1094
46 PN1104
47 PN1363
48 PN1377
49 PN1020-1022
50 PN1383
51 PN1384
52 PN1513-1515 & PN1560-1561
53 PN1562
54 PN1483-1485
55 PN1573-1575
56 PN1468
57 PN1469
58 PN1494-1495
59 PN1489 & PN1558
60 PN1473-1478
61 PN1563-1564
62 PN1451
63 PN1453-1454
64 PN1456-1457
65 PN840-841
66 PN824 & PN945
67 PN831-833
68 PN838
69 PN956
70 PN968-969
71 PN842-848
72 PN853-858
73 PN861
74 PN979-980
75 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8
76 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
77 Ibid
78 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
79 Ibid
80 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]
81 Ibid
82 Ibid
83 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
85 Hearing Book at p 154
86 Hearing Book at p130
87 Culpepper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243 at [22]-[25]
88 Ex R3
89 [2012] FWAFB 4810 at [26]
90 Monash University v Meaney [2019] FWCFB 2978 at [21]-[24]
91 Ibid
92 (1995) 185 CLR 410 at 465
93 Ex R3, particularly at [38]-[54]
95 Gurdil v The Star Pty Ltd [2013] FWC 6780 at [101]
96 The two supervisors are (1) Mr Cahill and (2) Mr Weston’s supervisor at the time of his dismissal.
97 7 September 2022 to 14 December 2022 is 14 weeks, less the 5 week payment in lieu of notice, is 9 weeks. 9 x $2,901 ($150,852/52) per week = $26,109. This calculation does not take into account any further loss of earnings since the date of the hearing or superannuation contributions.