1
[2013] FWC 3503
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Glen Mackie
v
BHP Coal Pty Limited
(U2012/886)
SENIOR DEPUTY PRESIDENT
RICHARDS BRISBANE, 28 JUNE 2013
Summary: allegation of object thrown at vehicle on a CFMEU protest line - non-unionists in
transit to BMA mine site - civil burden of proof - prior court proceedings - whether conduct
made out - Applicant’s evidence and witness evidence considered - inconsistencies in
evidence - factors affecting observations - onus on employer to prove misconduct.
[1] On 18 April 2012 Mr Glen Mackie (“the Applicant”) lodged an application under
section 394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in
respect of his dismissal by BHP Coal Pty Limited on 4 April 2012.
[2] There has been a considerable delay in progressing this application for reason that the
matters that were in contest in relation to the dismissal - which concerned whether the
Applicant threw a projectile at a moving vehicle (containing two non-union employees, Mr
Stephen Vine and Mr Ty Christison) whilst it passed through a picket line or protest at a
BMA mine site near Blackwater on 29 March 2012. One reason for the delay was that the
matter was the subject of proceedings in the Magistrates Court on 26 July 2012. Following
that summary trial before a magistrate, the Applicant was convicted of the offence of
committing a public nuisance under the Summary Offences Act 2005.
[3] That finding was appealed, subsequently, to the District Court of Queensland
whereupon the decision of the Magistrate was overturned by a single judge of that court.
[4] There is little to be gained for my purposes under the Act in trawling through those
decisions for purposes of guidance; I am required to hear the matter afresh on the evidence
before me and within a particular statutory setting. Evidence given in prior proceedings and
statements will remain salient, of course.
[5] The proceedings in the courts, in any event, were of a criminal nature, and the
applicable burden of proof was whether the Court could be satisfied beyond reasonable doubt
that the Applicant was guilty of the offence as alleged. Issues arising from the approach to the
criminal burden of proof were central to the appeal referred to above.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3503
2
[6] The civil burden of proof applies in the circumstances with which I will proceed to
contend.
Background and Applicant’s claims
[7] The background relevant to these matters, from the Applicant’s perspective, is as
follows.
[8] On 29 March 2012 the Applicant, along with others (somewhere between 30-70
CFMEU members it appears), participated in a picket line at what I would describe as the
main road transport access point to a BMA mine site near Blackwater, in Queensland.
[9] As mentioned above, the Applicant’s employment was terminated on 4 April 2012 as a
result of an allegation that he threw a projectile at a moving vehicle on 29 March 2012, as the
vehicle drove past a protest being conducted by the Construction, Forestry, Mining and
Energy Union (“the CFMEU”) (of which the Applicant was a member) during a period of
protected industrial action.
[10] The Applicant had no prior disciplinary history (at least that was led in these
proceedings) which is relevant to my determination.
[11] The Applicant claims that prior to the commencement of the protest (for which a
police permit had been obtained) the Applicant stated that he was advised by CFMEU
officials that the protest should be orderly and he otherwise understood that workers had been
getting into trouble for their conduct in relation to protests at coal mines in Queensland.
[12] The Applicant claimed that at approximately 5:05 AM on 29 March 2012 he arrived at
the protest site and noticed that there were some 40 to 50 CFMEU members (on his account)
already standing on both sides of the road. It was dark at the time.
[13] The Applicant claims that upon arriving at the protest and obtaining a cup of coffee he
took a seat next to Mr O’Toole - a co-worker - who was sitting at the end of the protest line at
its southern end. The Applicant claims that he placed a cardboard placard against his knees as
he sat next to Mr O’Toole. The issue of the coffee cup and the placard come into contention in
the following (as does the issue of the Applicant’s headwear at the time, which was to become
important in the matter of his identification).
[14] The Applicant claims to have been sitting some 50 to 60m away from the lighting
plant, and to have been some 4 - 6metres away from the cars travelling past towards the mine,
which was to the south. The Applicant stated that he could not see to the north because of
other members who were standing to his right (which was a point of some contrast with Mr
O’Toole’s evidence below).
[15] At a point after he had sat down with Mr O’Toole, he heard someone yell words to the
effect of:
“There they are.”
[16] The Applicant claims to have seen an old Toyota Land Cruiser move slowly past the
protest. As the vehicle passed the protest, people shouted and made a lot of noise and waved
[2013] FWC 3503
3
their placards, according to the Applicant. He did not recognise the vehicle as being unique in
any way, or as being Mr Vine’s vehicle. Nor did he recognise anyone in the vehicle, he says.
[17] Having said he did not recognise the vehicle or its occupants, the Applicant simply
assumed that the car “contained a non-union employee because of the comments from those
amongst the protest as the car approached.”
[18] The Applicant claims that he remained seated as the car went past as he had a cup of
coffee in one hand and a placard leaning against his legs. He didn’t yell out anything at the car
because he says he did not know who was in it. That is, though the Applicant knew the
vehicle that was passing through the picket line contained non-union employees - who had
been the subject of the union’s anxieties - he did not protest against them.
[19] Mr Brett Kendrick, who was also on the picket line somewhere behind the Applicant,
recalled seeing the Applicant (from the Applicant’s back) sitting on a chair as the car went
past. He gave evidence that the Applicant moved slightly out of his chair and then sat back
down again, adjusting his placards as he did so. Mr Kendrick states that he did not see the
Applicant move his arms or make any other movement directed towards the car. There is a
more extensive discussion of Mr Kendrick’s evidence below.
[20] Mr O’Toole, who was sitting next to the Applicant, stated that the Applicant remained
seated when the vehicles went past and other than looking at the vehicles he did not make any
physical gestures towards the vehicles including yelling anything out as they passed. Mr
O’Toole claims that he did not see the Applicant throw anything at the vehicles as they
passed.
[21] The Applicant claims that he did not see anyone throw anything at the car, nor does he
claim to have seen the car swerve on the road as it passed through the protest. Nor did any of
the other witnesses for the Applicant, such as Mr Tim Dwyer who was on the picket line near
to the Applicant.
[22] After the vehicle had passed the Applicant was informed that Mr Ty Christison and Mr
Steve Vine had been in the car. The Applicant understood that both these individuals “had not
been engaging in strike action with the rest of us.”
[23] A few hours later, at around 7:30 AM, as the Applicant was readying himself to leave
the protest he overheard a discussion about writing on the road leading out to the mine which
had made derogatory comments about Mr Christison and Mr Vine.
[24] The Applicant inspected the comments written on the road and recalled that they
referred to Mr Christison and Mr Vine and made reference to “scabs”.
[25] The writing on the road, as became evident over the proceedings, referred to Mr
Christison and Mr Vine, and it stated:
“Ty and SV are “SCAB”, “DOG”, “CUNTS”, “GRUBS””
[26] Later that day, the Applicant received a telephone call from a police officer who
wished to speak with him. Still later, two police officers attended his house and referred to an
[2013] FWC 3503
4
incident that morning on the picket line. One of the police officers indicated that an
unidentified object had been thrown at a car and that there were two complainants.
[27] The Applicant was then given a “Notice to Appear” and “Identifying Particulars
Notice”.
[28] The Applicant subsequently attended the Blackwater police station whereupon he was
fingerprinted and photographed by police and asked a number of questions about the incident.
The Applicant states that he declined to comment based on legal advice he had received.
[29] On 4 April 2012 at around 6:30 AM, after the Applicant had arrived at work to
perform his ordinary duties, he was directed to attend a meeting with the manager of
production mining, Mr Almeroe De Nysschen. The Applicant duly attended the meeting,
along with a CFMEU delegate. Mr Reg O’Connell from the Human Resources department
was also present at the time.
[30] Mr De Nysschen alleged that something was thrown at a vehicle on the morning of 29
March 2012 and that he had two witness statements saying that it was the Applicant who had
thrown the projectile.
[31] The Applicant made no comment for reason that he indicated that he was under legal
advice not to talk about the issue because it was now a criminal matter. The Applicant’s
claims in this regard are supported by the delegate who attended the meeting, Mr Damian
Borg.
[32] Mr O’Connell took the view that the matter was a work-related issue and that the
criminal proceedings were quite separate. The meeting seems to have persisted for some 4
hours with periodic suspensions so that the Applicant and the delegate could obtain advice
from the CFMEU. Mr O’Connell stated that there were some five distinguishable meetings
over the course of that morning (though I was spared a debate as to what constituted a
meeting).
[33] The Applicant claims that at around 12 PM, he was handed a termination letter. The
termination letter read in part:
Further to our recent discussions today 4th April 2012, I wish to confirm the
following:
Your employment with BHP Coal Pty Ltd is to be terminated for serious misconduct
effective today 4th of April 2012. Although the company is not required to do so, the
company has elected to provide you with four weeks pay.
The reason for the termination of your employment is your behaviour in throwing
projectiles at a vehicle containing other employees who were passing through the area
of the protest line in support of EA negotiations on Thursday 29th of March 2012.
[34] On each of the occasions the parties met the Respondent sought to investigate the
statements made by Mr Vine and Mr Christison in relation to the Applicant’s responsibility
for throwing a projectile at a vehicle, the Applicant refused to respond (as explained above)
other than to express his denial of the claims.
[2013] FWC 3503
5
[35] The Applicant was warned in the course of the meetings that his employment was in
jeopardy if his behaviour was found to have occurred as alleged.
[36] The Applicant considers that the dismissal had a significant impact upon him,
particularly in so far as he was disenfranchised from the share matching initiative of the
Respondent in which he had participated for some years. The Applicant claims to have lost
almost $17,000 in shares as a consequence of the dismissal.
[37] The Applicant’s gross wages amounted to $2524 per week at the time of his dismissal,
and he had also been entitled to a $6000 tax-free per annum payment in accordance with his
employer’s housing scheme entitlement (which he claimed to be of the value of $168.44 per
week).
[38] The Applicant commenced work as a shot firer with Downer EDI on what appears
(notwithstanding the Applicant’s statement) to be 30 April 2012. In that position he has
earned $2155.38 per week gross. He is also paid $426.42 gross in the form of a living away
from home allowance.
[39] The Applicant claims to have lost $368.62 per week gross in wages and $110.64 week
in allowances as a result of his termination.
[40] He also claims that between April 2012 and November 2012 he had to travel further to
work each day. This amounted to 60 km extra 14 times each month.
[41] The Respondent’s factual perspective on these matters is as follows.
Mr Vine’s evidence
Act of throwing
[42] Mr Vine was the driver of the vehicle at which it was claimed an object was thrown.
He had known the Applicant for some time, having first met him in April 2006 (when both
were employed by another employer). In that earlier period of employment the Applicant
delivered explosives to the shotfirers (including to Mr Vine) on a particular shot. At that time
Mr Mackie and Mr Vine worked the same shift roster and they saw and spoke to one another
a number of times each day, as well as at company recreational functions. Both were
subsequently employed with the Respondent from about September 2006, and Mr Vine would
see the Applicant intermittently from that time.
[43] On 29 March 2012, Mr Vine says he and Mr Christison drove through the protest area.
The protest area was some 20-30 metres long and barricaded from the road. About 70
protesters were assembled, according to Mr Vine, behind the barricades.
[44] As he approached the protest Mr Vine, who was driving the vehicle, had slowed down
out of concern for the proximity of the protesters to the road. The protestors were on both
sides of the road, with more on the left hand side than the right hand side.
[45] Mr Vine said the lighting was good and that he could see the protestors’ faces.
[2013] FWC 3503
6
[46] His vehicle had a sticker on the doors that stated “Steve Vine Lakeview Antenna
Services”.
[47] As the vehicle passed through the protest Mr Vine states that:
I glanced to the left hand side and I saw Mr Mackie. My view of Mr Mackie was
unobstructed. To the best of my recollection he had some kind of headwear on, but I
cannot recall what it was. I had no difficulty recognising him.
[48] The Applicant, according to Mr Vine, was in the act of throwing a projectile:
When I saw Mr Mackie, he was standing up and his right arm was raised in a throwing
action.
[49] Mr Vine claimed that he saw the projectile leave the Applicant’s hand:
I then saw an object leave Mr Mackie’s hand. I have a very vivid recollection of
seeing this.
[50] Mr Vine claims that the object travelled towards his vehicle and he lost sight of it as it
went over the hood:
I then heard the sound of something hit the canopy of the back of my ute and then
heard something hit the road on the driver’s side of the vehicle.
[51] This caused Mr Vine to take evasive action:
I instinctively swerved to avoid the object. I then corrected myself and continued to
drive on towards the Mine.
[52] Mr Vine characterised the extent of the swerve as “just a small twitch out of instinct.”
[53] Mr Vine recalled that:
At the time I saw Mr Mackie throw the object at my vehicle, he was standing
approximately 10 m away from my vehicle. There were other people standing around
him at the time, though not very close to him.
[54] As he was the driver, Mr Vine only witnessed the actions of the Applicant for a few
seconds, or at least a very short period of time.
[55] There are some other features of Mr Vine’s viva voce evidence in these respects to
which I will refer further below.
[56] Mr Vine’s vehicle progressed towards the mine following the incident. Possibly one
kilometre further down the road from the protest area Mr Vine noted large orange writing or
graffiti on the road referring to Mr Christison and himself. I have set it out the content of the
graffti earlier. Photographs of the graffiti were tendered in evidence.
[2013] FWC 3503
7
[57] Mr Vine along with Mr Christison approached a supervisor at the pre-start meeting
and alerted him to the incident. Mr Vine and Mr Christison thereafter provided a written
statement about the incident to the Respondent.
[58] Later that morning Mr Vine attended a meeting at the office of the general manager
for the mine who is also the site senior executive and was introduced to a lawyer and a police
officer from the Blackwater police station. Mr Vine provided a written statement at that time
regarding the incident. On 3 May 2012 he attended the Blackwater police station and gave a
further statement. The statements form part of Mr Vine’s evidence.
Mr Christison’s evidence
[59] Mr Christison states that he had known the Applicant for approximately 4 1/2 years,
and had “had fairly consistent work interactions” with the Applicant during that period,
including sharing social activities.
[60] Mr Christison stated that he had probably seen the Applicant hundreds of times in
close proximity and had spoken to him on many occasions over the 4 1/2 years he had known
him.
[61] Mr Christison had been a member of the CFMEU since 2009 but had resigned his
membership in February 2012. In early March 2012 Mr Christison claimed that his front lawn
had been subject to an application of herbicide which formed the word “scab”. He referred to
other conduct consequence of his resignation from the CFMEU, including being transferred
from his regular crew. Mr Christison did not participate in the industrial action that occurred
at the mine in March 2012.
[62] Mr Christison stated that the protesters generally would stand on both sides of the road
as Mr Vine and he (as a passenger) drove through to the mine.
[63] The area of the protest was well lit by a lighting tower:
The tower threw a lot of light in the area.
[64] Mr Christison stated that he was able to recognise people in the protest on the
occasions he drove through to the mine. On one occasion - which appeared to be 17 February
2012 - a ‘witches hat’ had been thrown at the car in which he was travelling, though he was
not able to identify the responsible person.
[65] On 29 March 2012, at about 5:15 AM he sat as a passenger with Mr Vine as Mr Vine
drove through the protest.
[66] On this occasion the lighting tower had been set up on the left-hand side of the road
and the area was according to Mr Christison “extremely well lit and it was very bright.”
[67] Mr Christison admitted to being apprehensive and nervous and was alert and scanning
the faces of the people in the protest.
[2013] FWC 3503
8
[68] Mr Christison stated that he witnessed Mr Dwyer – who is referred to above –
standing just beyond a light tower on the left-hand side of the road, yelling and screaming at
the car as they drove by.
[69] He observed that Mr Dwyer was wearing a white cowboy hat.
[70] As the car progressed through the protest Mr Christison stated that he saw the
Applicant.
[71] The Applicant was not standing near Mr Dwyer, according to Mr Christison.
[72] The Applicant was located towards the end of the protest line and was standing further
beyond the light tower than Mr Dwyer and was according to Mr Christison some 5 metres
away from the car. Mr Christison stated that the Applicant was standing some metres away
from the nearest people.
[73] Mr Christison claims that the Applicant was also wearing a cowboy hat, which he had
seen him wear on other occasions.
[74] Mr Christison states that the Applicant was standing near two CFMEU flags.
[75] He then saw the Applicant take a step forward and lift his right arm and throw an
object at the vehicle in which he was a passenger. He heard the “bang” as the object hit the
ute canopy and he felt the car swerve “a bit”. Mr Christison further states:
After Mr Mackie threw the object, I pointed my finger at him. I then saw him look
directly back at me and then put his hand over his face.
[76] Both Mr Vine and Mr Christison gave evidence that the evasive action taken by Mr
Vine was limited, or of a minor nature, in response to the object being thrown.
[77] As the vehicle progressed up the road towards the mine, approximately one kilometre
beyond the protest Mr Christison witnessed various words written in large writing in
fluorescent orange paint on the roadway. The words are set out earlier in this decision.
[78] Mr Christison gave evidence that upon arriving to work he had agreed to report the
incident to his employer and did so in the company of Mr Vine.
[79] As with Mr Vine, Mr Christison provided a written statement about the incident at the
time. He provided a further written statement when he was called to the general manager’s
office later that morning. A more detailed written statement was provided to the police on 25
April 2012.
[80] Mr Christison claimed that the evidence of Mr Hannaford, as set out below, was false
and untrue in all respects and that he had never said the words Mr Hannaford claimed he had
said, and was offended by Mr Hannaford’s claims to the contrary.
[81] I will return to Mr Vine’s and Mr Christison’s evidence below. There are wider issues
and circumstances within which their evidence needs to be considered.
[2013] FWC 3503
9
Factors affecting visual recognition
Lighting
[82] The incident occurred at around daybreak on 29 March 2012.
[83] Mr O’Toole, as a witness for the Applicant, gave evidence that though it was still dark
at the time, there was a lighting plant or tower on the western side of the road (a fact also
attested by Mr Dwyer) so he (Mr O’Toole) could see what he was doing. Mr O’Toole was
sitting next to the Applicant.
[84] Both Mr Christison and Mr Vine gave evidence that the tower lighting was sufficient
to enable ready identification of persons involved in the roadside protest.
[85] Mr Dwyer, as a witness for the Applicant, for his part could make out the faces of both
Mr Vine and Mr Christison in the vehicle, such was the availability of light. Mr Kendrick, as
a witness for the Applicant, stated that it was “really bright”.
[86] The Applicant claims that he was some 50 to 60 metres from the light tower.
[87] It appears to me that the lighting available across the protest, and in respect of the
Applicant’s location, was sufficient to provide for the identification of a person within a
reasonable distance (see below).
Distance
[88] Mr Vine gave evidence that the Applicant was some 10 metres from the roadside (in
his statement to police), though his earlier statements put that distance somewhere around 5 to
6 metres. Mr Christison put the distance at around 5 metres.
[89] The Applicant locates himself some 5 metres or so from the roadside. Mr Dwyer
placed the Applicant on the grass but close the gutter, perhaps a matter of a few metres from
the passing vehicles.
[90] On the evidence available to me, the Applicant was in sufficient proximity to the road
to be readily recognised by Mr Vine and Mr Christison as they drove by.
Capacity for personal identification
[91] Both Mr Vine and Mr Christison gave evidence that they had a close familiarity with
the Applicant’s appearance by dint of their work and prior social and recreational interactions
with the Applicant. The Applicant agreed that he was familiar to both Mr Vine and Mr
Christison.
[92] The Applicant was far from being a stranger to either Mr Christison or Mr Vine. They
both gave evidence that they readily identified the Applicant at the end of the protest line. Mr
Christison appears to have been better positioned to make the identification as he was the
passenger and was studying the faces as he went through the protest line. As I have said
earlier, Mr Vine was distracted by his responsibilities as the driver and claims that the
[2013] FWC 3503
10
Applicant was “unlucky” to have been identified by him in the brief opportunity he had to
survey the protest line.
[93] The evidence leads me to conclude that Mr Vine and Mr Christison were capable of
readily recognising the Applicant, even if their focus on him was for a short period of time
only.
Vehicle speed
[94] Mr Christison gave evidence that the vehicle in which he was a passenger slowed
down as they approached and passed through the protest lines. Mr Vine also gave evidence
that he slowed down as he approached the protesters out of concern about how close they
were to the road. In his statement to police Mr Christison had stated that he believed the
vehicle was travelling at between 20 to 30 kph at the time, though in his evidence in these
proceedings he claimed to be travelling somewhere between 30 and 40 kph (however under
cross examination his evidence lacked exactitude in this regard). Mr Christison appeared in
the end to be uncertain about the speed of Mr Vine’s vehicle as it moved through the protest
line, though his evidence suggests he had the impression the vehicle speed may have been
around 30 kph.
[95] The Applicant for his part gave evidence that the vehicle moved “slowly through the
protest.”
[96] The evidence as led satisfies me that the speed of the vehicle driven by Mr Vine was
such that it would make the task of recognition of an individual’s identity reasonably
available.
Whether evidence concocted by Christison
[97] At the outset I note that evidence was led in these proceedings by Mr Hannaford - as a
witness for the Applicant - that Mr Christison had spoken certain words to him, and that these
words brought into question Mr Christison’s motivation in making his claims. I will deal with
these matters below, and quite separately from the following discussion.
[98] That said, the evidence of Mr Vine and Mr Christison provided for significant overlap
but not slavish replication (which sometimes can be an indicator of concoction).
[99] The differences in their evidence are not material noting that the differences in
observations may reasonably result from:
Mr Vine, as the driver, having less of an opportunity to view the Applicant than Mr
Christison, who as the passenger, claims to have had a more elaborate interaction
with the Applicant from the vehicle; and
that persons may apprehend different details about the same scene witnessed in
common, especially when one’s focus is subject to competing demands or stressors
(such as was Mr Vine, who was driving in difficult circumstances, as compared to
Mr Christison who was a passenger and had no other demands or stressors acting
upon on his attention or focus).
[2013] FWC 3503
11
[100] Some of the differences in the observed evidence were as follows:
Mr Vine thought the Applicant wore headwear but could not recall what kind, but
Mr Christison recalled the Applicant was wearing white akubra (similar to that he
had observed Mr Dwyer wearing);
Mr Christison witnessed Mr Dwyer wearing a white akubra, but Mr Vine did not see
Mr Dwyer at all;
Mr Christison claims he interacted with the Applicant after he had witnessed him
throwing the object (as set out above), but Mr Vine made no such observations; and
Both Mr Vine and Mr Christison had an unobstructed view of the Applicant, but they
placed him at different distances from the road (Mr Vine said approximately 10
metres and Mr Christison said approximately 5 metres - which accorded with the
Applicant’s claim).
[101] None of these differences are such that they suggest to me that the evidence as I have
reviewed it so far was concocted in relation to the central issue of identification or else flawed
in any fundamental way for the purposes of the determination I must make. The differences in
the evidence are not sufficient to give rise to an inherent contradiction or inconsistency that is
fatal to the central claim. It strikes me as being reasonable that Mr Vine only absorbed the
Applicant’s unobstructed image momentarily, having “glanced to the left.” He was the driver
and several stressors were acting on his attention. This had in effect been Mr Vine’s claim in
his statement to police. Mr Vine’s evidence would be questionable if he had a more elaborate
observation than he claimed. Mr Christison’s situation allowed for a more comprehensive
observation by far; he was the passenger in the vehicle only.
[102] But that said, there are a number of further apparent internal inconsistencies within the
evidence of both Mr Vine and Mr Christison that warrant exploration.
Internal inconsistencies: Mr Vine
[103] Mr Vine’s evidence in writing in these proceedings was that he observed the Applicant
in an unobstructed manner to his left as he passed him, and in a glance witnessed him in the
action of throwing an object.
[104] In his viva voce evidence, however, he recounted a more comprehensive recollection
of the scene, which included the Applicant having been obscured or standing behind a sign
but becoming visible as Mr Vine approached him. Just how the Applicant came to be visible
is a point of contention. He may have become visible as the vehicle approached and the angle
of vision opened up. Or else, on Mr Vine’s initial two statements (Exhibits SEV-4 and SEV-
5) he may have stepped forward from behind the sign.
[105] In these proceedings, Mr Vine’s evidence seemed to share something of all of the
above - the Applicant was obscured behind a sign and Mr Vine saw him taking a step forward
as he commenced the throwing action.
[106] Having heard Mr Vine’s evidence, I have concluded that Mr Vine himself has a
perception issue as to how the Applicant came into his line of vision - either by stepping
[2013] FWC 3503
12
forward from behind a sign or as a result of the changing angle of vision as Mr Vine’s vehicle
progressed through the picket line (whereupon he witnessed the Applicant take a step in the
action of throwing the object).
[107] I do not think it is a matter that goes to the witness’ credibility. The difficulties in Mr
Vine’s explanation of the structure of the observed action arise reasonably from the brevity of
the period of time the witness observed the Applicant.
[108] In all, Mr Vine’s evidence was not inherently contradictory or implausible to the
extent I question its reliability.
Internal inconsistencies: Mr Christison
[109] Mr Christison’s evidence is not without difficulties at points, either.
[110] In his initial statement Mr Christison had stated that he saw Mr Mackie “step out from
behind a sign and launch a projectile in the direction of the vehicle” in which he was
travelling. In the second statement (to police) Mr Christison had noted that Mr Mackie had
stepped out from behind a freestanding sign that was about “six-foot tall.” In the Magistrates
Court proceedings Mr Christison referred to the sign as “free standing flags”, which were
“like a flag.” Later in the Court proceedings Mr Christison referred to the Applicant as having
“[h]id behind the actual sign that was there [...] [m]oved in behind the flag.” In these
proceedings Mr Christison referred to the Applicant being behind flags.
[111] I very much doubt anything material turns on the distinction between flags and signs
as Mr Christison referred to them over the long course of the evidentiary trail.
[112] It is not disputed that there were signs on poles and flags in the area. Mr Dwyer for the
Applicant gave evidence to this effect (though in cross examination, with some uncertainty,
he thought the placards affixed to the poles were on the marquees only).
[113] In the Magistrates Court proceedings and in these proceedings, Mr Christison gave
evidence that the Applicant hid his face in his hands when he realised he had been observed.
But these observations were in none of Mr Christison’s initial statements.
[114] In his first statement to the police, Mr Christison stated he was travelling with Mr Vine
at a speed of 20 to 30 kph as they advanced through the picket line. Elsewhere (in the
Magistrate Court proceedings) I note that Mr Christison placed the speed at 30-40 kph. I have
made some comments on this matter of evidence above.
[115] In his initial statements, Mr Christison made no mention of Mr Dwyer or his hat, and
the proceedings in the Court did not touch on such an observation. But the sighting of Mr
Dwyer was introduced into the evidence in these proceedings (noting that in his re-
examination in the Magistrates Court, Mr Dwyer had mentioned he had been wearing a hat, as
he did in his evidence in these proceedings).
[116] In the Magistrates Court proceedings Mr Christison claimed he heard no noise as the
object struck the canopy of the ute, but recalled Mr Vine causing the vehicle to swerve
somewhat when the object was thrown. In these proceedings, however, Mr Christison
[2013] FWC 3503
13
claimed, like Mr Vine, to have heard the effect of the impact, as the vehicle’s windows were
down, in addition to recalling the swerving motion he effected.
[117] Reviewing the evidence, these are not discrepancies that give rise to inconsistencies of
such a scale or type that are fatal to Mr Christison’s credibility, and the reliability of his
evidence as I have heard it, that he witnessed the Applicant throw an object at the vehicle in
which he was a passenger. That is, while there are difficulties in the evidence before me, these
difficulties do not attack in any substantive manner on the claim about identification which is
central to these proceedings (or else aid a finding of concoction in that respect).
[118] I note too that Mr Vine and Mr Christison made their complaint about the Applicant
soon after their pre-start and immediately following the incident, and not after some delayed
period that might more readily allow for collaboration and fabrication in some circumstances.
Two statements from each of Mr Vine and Mr Christison were taken the same morning.
[119] Having examined the evidence for the Respondent, I will turn to examine the evidence
for the Applicant. That evidence does not need to prove that the Applicant was not guilty of
the conduct as alleged: the Respondent bears the burden principally to prove the misconduct
in this case. But the evidence led on behalf of the Applicant may be relevant. For example,
that evidence may bring into question the claims of the Respondent. In some circumstances,
the wider evidence can also assist the Respondent’s case. For these reasons the Applicant’s
evidentiary case requires close scrutiny in its own right.
Applicant’s evidence assessed (in context)
[120] The Applicant’s evidence was that he attended the protest but in effect made no protest
other than through his passive physical presence. That is, while those about him sang out
“here they are”, the Applicant merely sat passively in his chair with a cup of coffee in one
hand and with a sign leaning against his knees and watched as the vehicle containing Mr
Christison and Mr Vine passed by. The Applicant, on his own evidence, did so knowing that
the vehicle contained non-union employees who were entering the mine during a period of
industrial disputation.
[121] Demonstrably there was some significant degree of excitement amongst those in the
protest as to the status of Mr Christison and Mr Vine as non-union employees. There was
shouting as the vehicle passed by and Mr Kendrick recalls the phrase “scabs” being yelled out
and he rushed towards the road when Mr Vine’s vehicle passed by. Mr O’Toole recalled that
he heard Mr Dwyer “go off” at a point.
[122] There is evidence, also, of large print fluorescent orange painted words on the road
targeting both Mr Vine and Mr Christison:
“Ty and SV are “SCAB”, “DOG”, “CUNTS”, “GRUBS””
[123] Clearly, Mr Vine and Mr Christison were the subject of some ill feeling on the part of
the protestors, or elements therein, and their attendance that day was anticipated.
[124] But in this context, the Applicant sat passively and watched the vehicle containing
non-unionists pass by without a sound or any motion at all on his part.
[2013] FWC 3503
14
[125] The Applicant also claimed that Mr O’Toole, who was seated beside him, also made
no physical movement at all, when Mr Vine’s vehicle passed by. But Mr O’Toole’s evidence,
as set out below, is different, and does not support the Applicant’s claim in this regard.
[126] The Applicant claimed that he did not recognise the vehicle that drove by or its
occupants. He only knew it to contain non-union employees.
[127] Mr Dwyer gave evidence in these proceedings and before the Magistrates Court that
the vehicle was “pretty distinctive” and had advertising on the panels indicating Mr Vine’s
name and his previous business, and that he could identify both Mr Vine as the driver and Mr
Christison as the passenger. Mr Dwyer gave evidence that both he and the Applicant were
positioned on the gutter. They were therefore similarly positioned in relation to the passing
vehicles (in Mr Dwyer’s evidence).
[128] The sign on Mr Vine’s vehicle is as set out earlier, and it indicated Mr Vine’s name.
[129] Mr Kendrick, at one point in his evidence at least, also stated that despite standing
some six or so metres behind the Applicant he not only saw the vehicle pass by but also
identified Mr Vine as the driver:
You mean by that that you didn't see Mr Vine's car pass through the protest line at any
time?---I saw Mr Vine pass in the car [...].
[130] But being only some metres from Mr Dwyer, and sitting as close to the road as was Mr
Dwyer (or on the gutter as Mr Dwyer, Mr Kendrick and Mr O’Toole stated), the Applicant
claimed that Mr Vine’s vehicle, containing Mr Christison and Mr Vine, was not recognised by
him (despite the advertising on the door panel which included Mr Vine’s name), was not
unique, and that he did not see anyone sitting in the vehicle as it passed by him.
[131] I add that Mr Kendrick, particularly in his evidence before the Magistrates Court, like
Mr Dwyer, viewed Mr Vine’s vehicle as being distinctive (“an old vintage” Landcruiser). But
Mr Kendrick appears to have been positioned differently (being some 4-6 metres behind the
Applicant) than was Mr Dwyer in respect of the identification of the vehicle occupants on the
day of the protest.
[132] Mr Kendrick also gave evidence in the Magistrates Court that he was anticipating Mr
Vine’s passage through the protest and “we had a fair idea which car” the non-unionists were
in. Mr Kendrick knew Mr Vine’s vehicle had to pass through the protest that morning.
[133] The Applicant shared none of the knowledge of Mr Vine’s vehicle that was shared by
Mr Dwyer and Mr Kendrick, and presumably others (as Mr Kendrick seemingly suggested).
[134] The Applicant claims to be uncertain as to whether he was wearing his white akubra
that morning. The Applicant could not tell the Magistrate whether he was wearing the hat that
morning or not, though for these proceedings he was more certain he had not worn the hat as
it was dark.
[135] Mr Dwyer gave evidence that he (Mr Dwyer) was wearing his white akubra hat that
morning, despite the time of day.
[2013] FWC 3503
15
[136] Given that Mr Dwyer and the Applicant drove to the picket line together, alighted
from the vehicle together and walked towards the protest line together and chatted before
separating (or else on the Applicant’s evidence walked some distance - 30 metres - to the
CWA hall to obtain a cup of coffee), it would reasonably be the case that they would
remember that they were both wearing white akubra hats that morning.
[137] That is, the circumstances do not lend themselves to an absence of recall, but to a
reason for the preservation of a recollection. The act of having travelled together, and then
walking side by side both wearing white akubras might impress itself on one’s memory rather
than lead to an uncertain recollection (especially when there is no evidence led that any other
persons were wearing such hats at the picket line that morning).
[138] The fact that the Applicant and Mr Dwyer, despite these circumstances, both have no
recollection about the Applicant’s headwear that morning is an issue for consideration in the
context of the wider discussion of the Applicant’s evidence.
[139] As mentioned above, the Applicant claimed that he and Mr Dwyer, upon arriving at
the protest site, walked the distance over to the CWA hall to get a cup of coffee, before going
their separate ways.
[140] Mr Dwyer gives no evidence that either he or the Applicant walked off to obtain a cup
of coffee from the adjacent CWA hall (some 30 metres from the picket line) before he
observed the Applicant making his way over to Mr O’Toole to sit down beside him at the far
southern end of the picket. Mr Dwyer simply stated that he and the Applicant walked to the
picket line and chatted for a minute and then he (Mr Dwyer) observed the Applicant walking
over and sitting down beside Mr O’Toole. Mr Dwyer agreed that he was quite sure about this
and that nothing else happened.
[141] This evidence is difficult to reconcile. If Mr Dwyer chatted for a minute with the
Applicant and then watched him walk over to Mr O’Toole, then the Applicant did not walk
over to the CWA hall to obtain a cup of coffee firstly (and then only recognise Mr O’Toole
after having done so). Or else Mr Dwyer is wrong in his recollection, despite some time being
spent on the issue in cross examination and his express air of certainty.
[142] Of course, the practical issue of how the Applicant could have stood up with any ease
of action and thrown an object when he had a cup of coffee in one hand and was at the same
time holding a placard is a matter of some importance in these proceedings
[143] I add that Mr O’Toole claimed the Applicant was carrying a cup of coffee when he
was speaking with him that morning. But Mr O’Toole’s evidence was uncertain as to whether
that was simply a presumption (on the basis that coffee and burgers had been available and
utilised by the protesters generally) or was a fact emanating from his direct recollection. In
any event, I make comment on the reliability of Mr O’Toole’s evidence below.
[144] There is further discussion below as to what was (and was not) in the Applicant’s
hands at the time Mr Vine’s vehicle passed by, this is particularly so in the context of Mr
Kendrick’s evidence.
Mr O’Toole’s evidence
[2013] FWC 3503
16
[145] Mr O’Toole claimed the Applicant, who was seated next to him to on his right and
therefore in his line of site as he watched the vehicle approach, did not move at all when the
vehicle passed by nor did he (the Applicant) yell out anything. This evidence reflected that of
the Applicant. Mr O’Toole claimed in his written statement that the Applicant neither stood
up nor shouted anything as the vehicle went past, but only held up his sign.
[146] Mr O’Toole also said that he could not recall the Applicant standing up though “he
might have got up.” But he couldn’t recall. Under re-examination Mr O’Toole claimed that
there was no way the Applicant was standing up (seemingly at any time).
[147] While Mr O’Toole was wedded to belief that the Applicant had done no wrong, his
evidence otherwise did not always support the Applicant’s case (as mentioned above).
[148] Mr O’Toole gave evidence that when a car went past he would pick up his placard and
wave it and yell out “Oi, Oi, Oi”. Mr O’Toole therefore was engaged in an activity as a car
went “through the picket line” and was not looking constantly or directly at the Applicant.
[149] Mr O’Toole was not at all times focused on the conduct of the Applicant as a
consequence.
[150] Mr O’Toole was not aware of the Applicant’s conduct at the time Mr Vine’s vehicle
passed by and generally “didn’t pay much attention to the road”. In fact he was unaware of
who Mr Vine and Mr Christison were, let alone what vehicle they were driving.
[151] Mr O’Toole did not recall anyone yelling, “There they are”, as the Applicant (and
others) did, nor did he assume, as a consequence, that any particular vehicle containing non-
union employees was passing at any particular point in time, as the Applicant did.
[152] Mr O’Toole was unaware as to whether or not the Applicant was wearing his white
akubra hat that day.
[153] He also claimed to have a clear line of sight all the way down the picket line. But at
the same time contended that he was seated at the far end of the picket line, and a little way
back from the gutter, with the Applicant to his immediate right, all of which would have
obstructed his view. This of course placed Mr O’Toole and the Applicant within a line of
sight with Mr Dwyer. Mr Mackie himself claimed that he could not see up the picket line
owing to the assembly to his right and closer to the road (as I have discussed above).
[154] Mr O’Toole also placed himself at a location on the picket line (given it was not a long
protest line) a very significant distance indeed (perhaps at a minimum of 10 metres) from
where the other witnesses for the Applicant placed him (and the Applicant).
[155] Mr O’Toole claimed that he “never take[s] much notice when talking to people.” He
remembered no flag poles or banners being near him.
[156] Mr O’Toole’s written statement in these proceedings made no mention of the
Applicant having a coffee cup with him when he came over, but this evidence was introduced
in the course of the cross examination (as it was in the Magistrates Court proceedings).
[2013] FWC 3503
17
[157] As is evident, Mr O’Toole’s recollections were clipped and partial and not always
consistent. And Mr O’Toole admitted, and as was entirely evident from his testimony, that he
did not have an authoritative grasp of the details of the morning’s events given his low degree
of attentiveness generally.
[158] But despite this, Mr O’Toole was adamant that he remembers looking at his watch and
noting that the Applicant sat down with him at 5.05 AM and spoke with him for 10 minutes or
so, thereby placing the Applicant in his company at the time Mr Vine’s vehicle drove past
(noting that Mr O’Toole otherwise claimed to have no knowledge of Mr Vine, Mr Christison
or the vehicle or the passage of a vehicle containing non-union employees).
[159] Absent this recollection, it would have fallen into contention as to whether or not the
Applicant was even seated with Mr O’Toole at the relevant time.
[160] I do not accept that Mr O’Toole possessed such detailed knowledge.
[161] Generally, Mr O’Toole’s evidence was far from convincing and his degree of
attentiveness to any matter of detail was highly questionable, as I have mentioned (though on
the critical matter of chronology he asserts uncharacteristic accuracy). Mr O’Toole simply
appeared to be interested in pressing the proposition, too eagerly, that the Applicant was
innocent of any wrong doing at the expense of testable evidence.
Mr Dwyer’s evidence
[162] Mr Dwyer was not at all times aware of the Applicant’s actions at the relevant time as
he himself was protesting the passage of the vehicle containing Mr Vine and Mr Christison.
That is, the Applicant may have conducted himself in a manner not seen or observed by Mr
Dwyer (particularly so noting that the Applicant placed Mr Dwyer a few metres in front of
him, and to his right). Though I have made comment elsewhere about Mr Dwyer’s evidence,
Mr Dwyer himself brings no evidence to this matter that is relevant to the Applicant’s conduct
at the time of the passage of Mr Vine’s vehicle through the protest line:
So do you accept this: you can't shed any light on whether or not at the time Mr Vine
drove past directly in front of where Mr Mackie was sitting, he was on his feet or
threw anything, or both?---No.
You agree with that?---Agree, yes.
Mr Kendrick’s evidence
[163] Mr Kendrick, for his part, states that he was standing behind the Applicant by some 4-
6 metres, and no other person was obstructing his view of the Applicant.
[164] Mr Kendrick also gave evidence in the Magistrates Court proceedings that he had been
rushing to get to the picket line to watch Mr Vine’s vehicle pass but before he reached the
picket line it had passed by. In these moments as he watched the vehicle pass by and
accelerate slowly away from the protest, Mr Kendrick claims, in these proceedings, that he
observed the Applicant and Mr O’Toole as part of a single sweeping observation of the
protest in the context of the passage of Mr Vine’s vehicle.
[2013] FWC 3503
18
[165] Mr Kendrick gave written evidence that he also saw the Applicant move “slightly out
of his chair” and then sit back down again as Mr Vine’s vehicle passed.
[166] Under cross-examination, Mr Kendrick described this as a “lurch” forward, but
subsequently added the qualification in re-examination that the Applicant did not lift his
buttocks from his seat:
As I noted your evidence, you describe it by "he made a lurch"?---Yes, he lurched in
the chair.
When you did that (indistinct) you seemed to indicate up and down. Correct?
---Like that.
So you're demonstrating - [...] a lean forward and perhaps a little movement out of the
chair and then sitting back down?---No, his bum didn't leave the chair.
[167] Still later in re-examination, Mr Kendrick referred to the Applicant having “sat back
down again” when he observed him.
[168] Mr Kendrick’s evidence before the Magistrates Court was less elusive. There he gave
evidence that the Applicant “half got up” when Mr Vine’s car drove past.
[169] In his evidence during these proceedings Mr Kendrick contended that he only saw the
Applicant’s profile (from standing around 6 metres behind the Applicant) for a “fleeting
moment”. This claim sits uncomfortably with more detailed observations about the
Applicant’s movements.
[170] In the Magistrates Court Mr Kendrick had said he saw Mr O’Toole and the Applicant
in conversation. This does not accord with his claim that he had seen the Applicant for a
fleeting moment, or “a quick glance” only.
[171] This means from being positioned some 6 metres behind the Applicant, Mr Kendrick
saw in one “glance” as he watched Mr Vine’s vehicle pass by: the Applicant’s movement (of
whatever kind) in relation to the seat; the Applicant’s “profile”; both the Applicant’s hands
being on his placard; an observation that he could not observe the Applicant’s left hand (at
what appeared to be the same time); and the Applicant in conversation with Mr O’Toole.
[172] Mr Kendrick also retained both the images in the foreground (the seated couple and
the Applicant’s movements in particular) and in the background (the moving vehicle passing
by and accelerating away). This is never an easy task of observation other than when an
individual is fully concentrating for that purpose (and Mr Kendrick had no such purpose).
[173] Mr Kendrick tried to explain these tensions in his evidence to some measure at least
by claiming his evidence before the Magistrates Court, in relation to having seen the
Applicant and Mr O’Toole in conversation, was an assumption only given the fleeting period
of his observation (though it was not so qualified before the learned Magistrate at the time).
[174] Mr Kendrick also observed that both the Applicant’s hands were on his placard. If so,
the cup of coffee claimed to be held by the Applicant (on the Applicant’s evidence and that of
[2013] FWC 3503
19
Mr O’Toole - though not of Mr Dwyer) must have been disposed of or relocated at the time
Mr Vine’s vehicle crossed the picket line.
[175] The Applicant gave evidence in the Magistrates Court proceedings that though he was
at a protest he was not saying or doing anything
“cause I had a cup of coffee in me hand.” (sic)
[176] Mr Kendrick twice referred to the Applicant having multiple placards or posters in his
hands. His fleeting observation permitted him to discern that the Applicant firstly had his
hands on the placards as the car drive past and then as he “sat back down” the Applicant was
further observed to be rearranging the placards in front of him.
[177] There is no coffee cup, nor can there be one, in the Applicant’s hand at these various
stages of Mr Kendrick’s evidence.
[178] Mr Kendrick also gave evidence, however, that the coffee cup had seemingly re-
appeared in the Applicant’s hands as he moved to meet Mr Dwyer and Mr Kendrick after Mr
Vine’s car had passed by (though at another time his evidence is less clear by far that the
Applicant had a cup of coffee in his hand when he came over to talk with him and Mr
Dwyer).
[179] Mr Kendrick conceded under cross examination that he could not “discount at the time
that [the Applicant] threw an object” at Mr Vine’s vehicle as it passed by. Under re-
examination he adopted the position that he believed the question he had answered had been a
“trick question” and it was not possible for the Applicant to have made the movement to have
thrown an object.
[180] As is evident from the above discussion, Mr Kendrick’s evidence is not without its
difficulties.
Mr Hannaford’s evidence: conspiracy suggestion
[181] Mr Hannaford was a former contractor at the mine, had been made redundant and now
runs his own business. For some entirely curious reason (on the basis of the explanation he
gave) he sought to be summonsed to give his evidence in these proceedings.
[182] Mr Hannaford was not a CFMEU member at the time of the incident described above.
Mr Hannaford’s evidence in this matter was made memorable by his unusually agitated state
under cross examination. This included him striking his witness statement with some force
with his right hand on two occasions when his claims were questioned.
[183] It is not unusual for an applicant to experience some anxiety under cross-examination.
As a key witness for the Respondent, Mr Christison exhibited some measure of anxiety when
his evidence was pressed. But Mr Hannaford’s level as anxiety was marked and of an entirely
unusual level. Mr Hannaford seemed to suggest that this might be because of a heart condition
that he had developed in recent times, though nothing further was put on in this regard.
[184] Mr Hannaford’s evidence was not required for the purposes of the Magistrates Court
proceedings and no comparator is available (unlike with the witness evidence discussed
[2013] FWC 3503
20
above). Mr Hannaford’s evidence was available prior to the Magistrates Court proceedings, I
add.
[185] As stated above Mr Hannaford’s evidence was effectively that Mr Christison had
commented to him that he believed a number of his co-workers such as Mr Mackie were
“sheep” and “backstabbers” and that he would “pick them off one by one”. Specifically, Mr
Hannaford says Mr Christison stated as follows:
“They are all a bunch of sheep. I am going to pick them off one by one, Glen, Bekkie
and Tony. They’re a bunch of backstabbers.”
[186] Mr Hannaford’s evidence initially was confused by Mr Hannaford claiming that he
had initially contended that this information was conveyed to him by Mr Christison in the
latter part of 2011. It appears that he had initially informed the Applicant’s solicitor in such
terms (and this was the claim made in the Magistrates Court proceedings).
[187] For these proceedings Mr Hannaford claimed the information was conveyed to him
“just prior to the incident”, in March 2012, arguing that he had been confused and that events,
seemingly, had been “rolled up” in time.
[188] In giving evidence Mr Hannaford generally exhibited a questionable grasp of
chronology. Apart from the above matter, Mr Hannaford could not recall when he
commenced working at the mine (2011 or 2012), or when he ceased working at the mine, or
the dates of any salient telephone conversations raised in cross examination (without
considerable assistance).
[189] Yet, for all of this, Mr Hannaford otherwise was able to place (notwithstanding the
chronology asserted in the Magistrates Court proceedings) the approximate date of the alleged
conversation with Mr Christison (which was immediately prior to the picket line incident or
on or about March 2012).
[190] Mr Hannaford could remember little of the “conversations” he had with the Applicant
(though the Applicant claimed they seemingly had had only one such conversation) or be of
any assistance as to how his evidence came to be identified for the purposes of making a
statement. But he could recall comments made to him by Mr Christison in March 2012.
[191] Mr Hannaford’s claim about the conversation with Mr Christison (and it does not
appear to have been a rich conversation at all) was that Mr Christison climbed into his truck
and, when asked how he was, made the comment as alleged.
[192] Mr Hannaford claimed that when the comment was made he made no response or
inquiry himself as:
“I didn’t want to know anymore. I didn’t want to get involved [...].”
[193] Mr Hannaford’s desire not to become involved, or know any more about what it was
Mr Christison was talking was not borne of a concern there was a substantial issue afoot in
respect of which he sought not to become entangled.
[2013] FWC 3503
21
[194] Rather, Mr Hannaford stated the comment did not concern him at all. He stated that he
did not report the conversation as he believed Mr Christison was simply “blowing off a bit off
steam that he’s having a bad day” and that the statement was not “threatening” and (he also
agreed it was) not “a big deal.”
[195] Mr Christison’s reaction was such that he did not invite any further discussion
between Mr Hannaford and Mr Christison over the course of the journey together and bar that
comment nothing else was said (despite Mr Hannaford believing that Mr Christison had been
just “blowing off steam”). Mr Hannaford had no curiosity about the comments and said
absolutely nothing in reply when they were allegedly made to him, despite their nature, and
despite his absence of concern about those remarks. The journey simply continued in silence.
[196] Mr Hannaford’s evidence, which I have heard, has the hallmarks of concoction. The
comments as alleged have an uncertain origin in time. They are recalled in detail when the
witness has little grasp of any surrounding details of any other conversations (or chronology).
The comments as alleged are abstracted and have no context whatsoever. And Mr
Hannaford’s claimed reaction to them (even putting aside his agitated presentation), adds to
the overall air of artificiality that affected his evidence generally.
Company policies
[197] The Respondent maintains a Code of Conduct (the BHP Billiton Code of Business
Conduct), which underpins a charter (referred to as “Our Charter”).
[198] There are a number of values specified in the charter, one of those is integrity, another
being respect. Reference is made to the need to maintain a workplace free of harassment and
bullying, and that this extends to freedom of association matters.
[199] The Respondent maintains that the conduct of the Applicant was such to impugn both
of those values.
[200] The Company contends that those values must be reflected in the conduct of
employees whom it employs.
[201] The charter referred to above refers to the responsibilities of those working for BHP
Billiton and BMA.
[202] It requires that all employees and contractors working for or on behalf of BHPB and
BMA must:
Agree to uphold a commitment to respecting the values of BHP Billiton Charter;
[....]
Adhere to the principles and requirements contained in the BMA Workplace Conduct
Policy [...].
Legislation
[203] Section 387 of the Act provides as follows:
[2013] FWC 3503
22
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Consideration
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees)
[204] On the evidence I have discussed above, I am persuaded that on the balance of
probability, the Applicant is responsible for throwing an object at Mr Vine’s vehicle as Mr
Vine and Mr Christison passed through the picket line and made their way to the mine site
early in the morning on 29 March 2012. Though the evidence of Mr Vine and Mr Christison
gave rise to some issues of consistency over time, which I have discussed above, their central
claim that they identified the Applicant as being the person who threw an object at their
vehicle from the protest line on 29 March 2012 was undisturbed. Thus, broadly my finding on
the critical issue of fact is as that of the learned Magistrate at first instance in this regard
(though I was afforded the opportunity to consider a wider body of evidence).
[205] I add as no more than a passing observation that I would find it most counter intuitive
for the two persons concerned to conspire to damage the reputation of either or both the
CFMEU or the Applicant in such a public context, where their claims were open to contest by
so many persons. Had Mr Christison and Mr Vine been so disposed they reasonably might
[2013] FWC 3503
23
have contrived a less public context in which to make their accusations. Mr Hannaford’s
evidence (on which I have commented specifically) gave rise to the implied conspiracy claim.
[206] Further still, the witness evidence for the Applicant did not provide an effective reason
to question in any substantive manner the claims made by Mr Vine and Mr Christison as to
identification. The Applicant’s own evidence as to his passivity in the context of the protest
and lack of knowledge about the ownership of the passing vehicle and the identity of its
occupants strains credulity in the wider evidentiary context I have set out. The factual matrix
concerning his proximity to the road and to Mr Dwyer, possession of a cup of coffee at the
relevant time (which hamstrung his capacity to throw an object) were all subject to competing
claims by his own witnesses. I also have cause to question the genuineness of the Applicant’s
recollection (in the particular circumstances) as to whether he was wearing his white akubra
hat (which Mr Christison identified). There is also no reliable evidence of a corroborative
kind to support the Applicant’s claims that he did not throw an object at Mr Vine’s vehicle. I
have discussed this evidence at some length above and, having had the opportunity to hear
each of the witnesses, commented on its weaknesses, contradictions and unreliability.
[207] But it is the evidence of Mr Christison and Mr Vine that is central to the determination
as to the conduct which occurred on 29 March 2012. Mr Vine and Mr Christison both
presented as creditable witnesses, and their evidence I have found to be reliable upon scrutiny.
In this latter regard, I have found so in the context of my discussion of their evidence above.
[208] The throwing action and the flight of the object (which struck the ute canopy) caused
Mr Vine to swerve his vehicle somewhat, perhaps more as “flinch” reaction.
[209] The Applicant’s conduct (as made out on the civil burden of proof) could have
jeopardised the safety of those along the picket line, as well as the safety of Mr Vine and Mr
Christison as they made their way to work.
[210] The conduct also was a very regrettable attack on two mine co-workers.
[211] Demonstrably, it is not conduct that sustains a cooperative, productive or safe
workplace.
[212] It was conduct, also, that was inconsistent with the Respondent’s workplace conduct
and behaviour policies, with which the Applicant was familiar. The Applicant attended a
Code of Conduct training course in February 2012.
[213] For these reasons, the Respondent had a valid reason for the Applicant’s dismissal.
[214] I add further that having so identified the conduct and having characterised it as I
have, the dismissal was a proportionate response to that conduct.
(b) whether the person was notified of that reason
[215] The Applicant had been notified of the reason for the dismissal. The various
allegations were put to him.
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[2013] FWC 3503
24
[216] The Applicant had numerous opportunities to put his case in response to the
allegations to his employer. There were some five meetings between the 29 March 2012
incident and the date of the dismissal (4 April 2012), which was communicated in the fifth
meeting. The Applicant declined to provide any response to the allegations (bar indicate he
was innocent) owing to legal advice given to him in the context of the (pending) police
charges.
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal
[217] The Applicant was represented throughout the meetings leading up to the dismissal.
(e) if the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal
[218] No issue of performance arose in these proceedings. Performance issues were
unrelated to the conduct issue at the core of the allegations.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on
the procedures followed in effecting the dismissal
[219] No relevant submission was made in respect of this provision, and none would be
expected given the size of the Respondent’s undertaking.
(g) the degree to which the absence of dedicated human resource management specialists
or expertise in the enterprise would be likely to impact on the procedures followed in
effecting the dismissal
[220] No issue arises in respect of this provision as the Respondent did not labour under any
deficiency of human resource expertise. The matter was overseen by the Respondent’s
manager of human resources at the mine site, Mr Reginald O’Connell, who has very
considerable experience in the field.
(h) any other matters that the FWC considers relevant
[221] The Applicant had been employed for some six years and nothing of any substance
was raised in relation to the performance of his duties or conduct other than in respect of the
incident before me. I state this knowing that at the dismissal meeting a reference was made to
a warning given previously for engaging in conduct that was in breach of the Code of
Conduct. Nothing of any evidentiary value was put to me about any such conduct.
[222] The dismissal was also said by the Applicant to have been harsh because of its effects
on his financial circumstances (noting he currently has a lower rate of pay and has lost certain
other benefits referred to earlier), and that he now must travel longer distances to work.
Conclusion
[223] Notwithstanding the Applicant’s length of service and record of employment, the
absence of any substantive interactions between the parties in the investigatory phase of the
[2013] FWC 3503
25
matter, and other effects of the dismissal as outlined, the conduct for which I have found the
Applicant to be responsible was of a serious nature. I have said as much earlier.
[224] The decision to dismiss the Applicant was proportionate to that conduct as found. This
is because an employer cannot expect to maintain an employee in its workforce who has
conducted himself in such a way in relation to his co-workers, put the safety of many others at
risk, and abandoned any commitment to the broader conduct expectations as clearly
communicated and understood.
[225] The dismissal was not harsh, unjust or unreasonable.
[226] The application for a remedy for unfair dismissal is therefore dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr D. Kent of Counsel (instructed by Hall Payne Lawyers), for the Applicant
Mr S. Meehan of Counsel (instructed by Ashurst Australia), for the Respondent
Hearing details:
Rockhampton
2013
Hearing 19 & 20 June
Final submissions on discretionary power, received 27 June 2013.
Printed by authority of the Commonwealth Government Printer
Price code C, PR537479
RK COMMISSION THALIA 7 341
