Francis, Susan v Patrick Stevedores Holdings Pty Ltd - [2014] FWC 7775

1

Fair Work Act 2009 
s 394 - Application for unfair dismissal remedy

Susan Francis
v
Patrick Stevedores Holdings Pty Ltd
(U2014/279)

DEPUTY PRESIDENT SAMS SYDNEY, 3 NOVEMBER 2014

Termination of employment - dismissal for serious misconduct - allegations of physical 
assault - onus of proof - allegation of inappropriate use of two-way radio - alleged 
collaboration of allegations by other employees - wharfies’ ‘code of silence’  - employees’ 
duty to cooperate - respondent’s investigation seriously flawed - no corroboration of 
allegations - inconsistencies of versions of events - flawed findings and recommendation of 
dismissal not available on the evidence - inexperience of investigator - failures of senior 
management to properly investigate allegations and counter-allegations - onus of proof not 
discharged - substantive and procedural unfairness - applicant’s dismissal ‘harsh, 
unreasonable and unjust’ - no valid reason for applicant’s dismissal - remedy of 
reinstatement not inappropriate - reinstatement ordered - orders for payment of lost 
remuneration and continuity of service Application for relief from unfair dismissal.

INTRODUCTION

[1] Ms Susan Francis (the ‘applicant’) was employed by Patrick Stevedores Holdings Pty 

Ltd (‘Patrick’ or the ‘respondent’) from 10 September 2012 until 13 January 2014, when she 

was dismissed for misconduct. At the time of her dismissal, she was a Senior Tally Clerk. In 

this role, she was responsible for ensuring the movement of correct cargo on and off a ship 

and into its correct placement. The applicant is 42 years old and is the sole carer for her four 

year old daughter. The applicant had previously worked for Newcastle Stevedores between 

2002 and 2009, but stopped working to care for her child, before taking up her job with the 

respondent.

[2] This decision arises from an application, filed by the applicant on 3 February 2014, 

pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for a remedy from unfair dismissal. 

The matter was the subject of an unsuccessful telephone conciliation on 17 March 2014 and 

was allocated to me for arbitration, beginning 27 May 2014 in Newcastle. While the parties 

[2014] FWC 7775

DECISION


E AUSTRALIA FairWork Commission




 



[2014] FWC 7775

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engaged in some brief settlement discussions on that day, these were ultimately unsuccessful 

and the matter progressed to arbitration. At the commencement of the proceeding, I granted 

permission, pursuant to s 596 of the Act, for the applicant to be represented by Mr A Howell

of Counsel, instructed by Mr A Jacka for the Maritime Union of Australia (‘MUA’ or the 

‘Union’) and for the respondent to be represented Mr S Burke, Solicitor, instructed alternately 

by Ms T Green and Ms C Ross of the respondent.

[3] When the applicant was dismissed on 13 January 2014, she was given a letter from Mr 

Warwick Sommer, General Manager - Stevedoring, expressed in the following terms:

‘I refer to [your employment with the respondent] and the allegations regarding your 
behaviour and actions of Wednesday 27 November 2013. 

I wish to reiterate that Patrick views inappropriate behaviour and contravention of our 
Bullying and Harassment policy as serious.

A show cause meeting outlining the allegations made against you was held with 
yourself on Thursday 9 January, 2014. At this time you were given an opportunity to 
respond to these and provide any information you believe was relevant for the 
Company to consider. The meeting was also attended by Denis Outram as your 
representative, and Andrew Wickham and Tamara Green.

Consideration has been given to the responses which you have provided throughout 
this process. It has been found that your conduct is unsatisfactory.

As communicated to you previously, in light of the seriousness of this misconduct and 
having regard to your response to the matter, the totality of your conduct is such that 
we took the decision to terminate your employment effective 14 January 2014.

Please advise us if you require a statement of service certifying your employment at 
Patrick.’

[4] The allegations referred to above were set out in a letter sent to the applicant on 16 

December 2013 as follows:

1. On 27 November, you were working in the yard as a tally clerk;
2. During the shift, at approximately 3 am, you were heard by several people 

communicating over the radios in a manner which has been described as 
abusive and inappropriate;

3. You were asked by a co-worker to ‘shut up’. You challenged the forklift 
operator around their comment and that co-worker again told you to ‘shut up’. 
The comment had come from Mr Nichol;

4. The shift carried on until smoko without any further incident;








[2014] FWC 7775

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5. At approximately 5 am, you entered the smoko room and walked straight up to 
Mr Nichol;

6. At or around this time, you began shouting at Mr Nichol. You were heard 
saying words to the effect, ‘Don’t you ever talk to me like that again’;

7. At or around this time an alleged physical assault occurred in which you 
grabbed Mr Nichol around the throat.

[5] The reference to Employee Responsibilities under the Asciano Prevention of Bullying 

and Bullying and Harassment Policy is set out under the heading of ‘9. Employee 

Responsibilities’ as follows:

‘All employees of Asciano are responsible for ensuring their own behaviour contributes 
to an environment which is free from discrimination and harassment and that abides by 
the Asciano values and Code of Conduct. It is the responsibility of all Asciano 
employees to:

 Set a positive example by treating others with respect at all times;
 Be aware of Asciano policy and comply with it;
 Show care and common sense - don’t make comments to others which may offend;
 Don’t accept behaviour that may be offensive to you or others;
 Take positive action to ensure inappropriate behaviour is challenged and reported; 

and
 Be supportive of colleagues who may be subject to such behaviour.

Asciano encourages employees who experience harassment or discrimination to report 
it straight away. This will remain confidential. Where necessary, a formal 
investigation will be undertaken and disciplinary action may occur.’

[6] At this point, I do not apprehend there to be any jurisdictional objections to the matter 

proceeding to arbitration. Specifically, I am satisfied that the applicant was a person protected 

from unfair dismissal (ss 382, 396(b)) in that she completed the minimum employment period 

of 6 months (ss 382(a), 383(a)) and that she was covered by the Patrick Bulk and General 

Newcastle Enterprise Agreement 2012 [AE899038] (s 382(b)(ii)). Additionally, the 

application was made within 21 days of the dismissal (ss 396(a), 394(2)), the respondent is 

not a Small Business as defined (ss 396(c), 388) and the applicant’s dismissal was not a case 

of genuine redundancy (s 396(d)). For the sake of completeness, there is no doubt that the 

applicant was a national system employee and that the respondent is a national system 

employer, as defined (ss 13, 14, 380).

THE EVIDENCE








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[7] The following persons gave written and/or oral evidence in the proceeding before the 

Commission:

For the applicant:

 The applicant;

 Mr Bradley Mackerras, Crane Driver, Patrick;

 Mr David Gorlicki, Forklift Driver, Patrick;

 Mr Denis Outram, Honorary Deputy Branch Secretary of the Union’s Newcastle 

Branch;

 Mr David Cox, Casual Operator, Patrick; and

 Mr Bradley Gough, Full Time Operator, Patrick.

For the respondent

 Ms Tamara Green, Regional HR Manager, Ports and Stevedoring, Patrick;

 Mr Scott Young, Stevedore, Patrick;

 Mr Justin Ferguson, Stevedore, Patrick;

 Mr Bruce McIntyre, Stevedore, Patrick;

 Mr Andrew Wickham, Newcastle Site Manager, Patrick;

 Mr Paul Nichol, Stevedore, Patrick; and

 Mr Warwick Sommer, General Manager, Stevedoring, PSL Services Pty Limited.

The applicant

[8] In her written statement, the applicant deposed that she worked between 8:00pm and 

8:00am on 26-27 November 2013. In the earlier part of that shift, after waiting in the shed for 

Mr Brad Gorlicki, a Forklift Driver to assist with moving some steel plate, she had said over 

the two-way radio: ‘Are you going to bring that forklift into the shed or what Gorlicki?’. 

There was a response of ‘Why don’t you shut the fuck up Susie?’ The applicant did not 

immediately respond to this, but when Mr Gorlicki came into the shed, she told him not to 

speak to her like that again. Mr Gorlicki told her that it was ‘Nicko’ (Mr Paul Nichol) who 

had spoken to her over the two-way radio. The applicant explained that she had only spoken 

on the two-way radio to ask Mr Nichol, who had been working in the hull of a ship, if there 

were any delays. He had not replied and Mr Jake Roach had notified her of what was 

happening on the shift.








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[9] The applicant said that prior to this incident and the subsequent allegations made by 

Mr Nichol, she considered him to be a friend. On one occasion, she had paid for Mr Nichol 

and his girlfriend to attend a boat cruise and for their drinks while they were there. They 

talked about general things at work. On another occasion, he had hit her on the head with a 

radio while she had a hard hat on. She had thought that this was only in fun, and responded by 

jabbing him in the back. He had once referred to her as a ‘ranga’ in front of other workers and 

asked her if ‘the carpet matched the curtains’ on a number of occasions. After the first time 

this happened, two of her colleagues had called her to ask if the comment had upset her. 

While she thought it was ‘out of line’, she had not complained about it.

[10] Returning to the night of 26 November 2013, the applicant said that the dinner break 

took place at midnight. She entered the meal room and spoke to a number of people while she 

prepared her refrigerated dinner. When she walked back from heating her dinner in the 

microwave, she said to Mr Nichol, ‘And by the way, don’t you ever talk to me like that again.’ 

Mr Nichol was sitting at a table with his back against the window and responded sarcastically, 

saying ‘And what are you going to do about it?’ The applicant jokingly said ‘I’ll smash you’. 

Mr Nichol repeatedly said, ‘Come on, come on then’, though not in an aggressive manner. 

[11] The applicant had initially thought she and Mr Nichol were ‘just mucking around’ and 

moved approximately five steps towards Mr Nichol, with one hand pointed towards him and 

she may have touched his shirt. Mr Nichol responded by punching her ‘firmly’ in the 

chin/throat, but not hard enough to knock her over. She was shocked and upset. When she 

stepped back, Mr Nichol said, aggressively and in a raised voice, ‘You strangled me and 

that’s abuse’ a couple of times, amongst some other things. She sat down and ate some of her 

meal and then went back to work.  She did not have a chance to speak to Mr Nichol until the 

second break, which took place at approximately 5:00am. Mr Nichol spoke to her like nothing 

had happened.  

[12] The applicant explained that after finishing a 12 hour shift on the morning of 27 

November 2013, she was approached by Mr Wickham, who informed her she was to be stood 

down immediately and would be required to attend a meeting at 7:00pm due to allegations 

made by Mr Nichol.  She was shocked. She had asked her partner, Mr Gough to cancel the 

meeting, as she had not been able to sleep, but had then changed her mind and attended the 

meeting with Mr Wickham and Mr Michael Ryan (Continuous Improvement Manager). Mr 








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Gough attended with her as her support person. She was told that Mr Nichol had alleged that 

she had ‘ran into the lunch room screaming at him and strangled him.’ She described the 

incidents as she recalled them, but noted that she substituted the word ‘fuck’ with ‘Mmm’ (in 

recalling the two-way radio incident) as she was embarrassed to swear in front of 

management. She was told that Mr Nichol had been stood down, but she now did not believe 

this to have been the case. She was told to sign a document which Mr Wickham had written 

on. She had not read it and had not realised that this was her statement. She had never been 

given a copy.

[13] The applicant was told a couple of hours after this meeting that she could return to 

work, as none of the employees on shift had corroborated Mr Nichol’s allegations. However, 

at 9:00am on 28 November 2013, Mr Wickham called her to reverse this decision, as someone 

had confirmed Mr Nichol’s story. She attended a further meeting with Mr Wickham, Ms 

Tamara Green (Regional HR Manager) and Mr Kevin Roach (Stevedoring Operational 

Manager, Newcastle). She attended with Mr Outram and Ms Michelle Myers of the Union 

and Mr Gough. She again outlined her version of the incident, describing more specifically 

who had been in the lunch room and providing a rough diagram of the room at that time. Mr 

Outram had asked Patrick to pay her while she was stood down. Mr Wickham contacted her 

on or around 15 December 2013 to tell her that she would be receiving a letter from Patrick. 

The letter of 16 December 2013 directed her to attend a meeting with Mr Wickham and Ms 

Green on 19 December 2013. She was allowed to bring a support person. The letter described 

the allegations as follows:

‘1. On 27 November, you were working in the yard as a tally clerk;
2. During the shift, at approximately 3 am, you were heard by several people 

communicating over the radios in a manner which has been described as 
abusive and inappropriate;

3. You were asked by a co-worker to ‘shut up’. You challenged the forklift 
operator around their comment and that co-worker again told you to ‘shut up’. 
The comment had come from Mr Nichol;

4. The shift carried on until smoko without any further incident;
5. At approximately 5 am, you entered the smoko room and walked straight up to 

Mr Nichol;
6. At or around this time, you began shouting at Mr Nichol. You were heard 

saying words to the effect, ‘Don’t you ever talk to me like that again’;
7. At or around this time an alleged physical assault occurred in which you 

grabbed Mr Nichol around the throat.








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The allegations above are very serious. Further, your alleged conduct of physical 
assault, verbal abuse and behaving aggressively towards another Patrick employee, if 
substantiated, would be unacceptable and constitute serious misconduct.

You opportunity to respond to the allegations
You will have an opportunity to respond the allegation in the meeting on Thursday 19 
December 2013. In addition to attending the meeting, you may also respond to the 
allegations in writing. 

You should be aware that, if the investigation finds that the allegations are true, you 
may be subject to disciplinary action, which may include termination of your 
employment.’

[14] The applicant took up the opportunity to respond to the allegations in writing on 19 

December 2013. In this document, she specifically denied using abusive or inappropriate 

language over the two-way radio and emphasised that someone had responded by saying 

‘Shut the fuck up Suzie’. She also denied walking directly up to Mr Nichol when she entered 

the meal room and described the incident in similar terms to that above (see paras [10]-[11]). 

She defended her use of the phrase, ‘Don’t you ever talk to me like that again’ as reasonable 

in the circumstances and denied she had been shouting. She specifically denied grabbing Mr 

Nichol around the throat; rather she had been assaulted by Mr Nichol and she questioned why 

he was still at work. She complained about the inconsistency and confusing aspects of her 

treatment by Patrick and the effects this had had on her.

[15] The applicant attended the meeting with Mr Wickham and Ms Green on 19 December 

2013 with Mr Outram of the Union acting as her support person. She handed her written 

response to the Patrick representatives. They asked if she wanted them to read the document 

before making their decision. When she said yes, they asked her to step outside. 

Approximately fifteen minutes later, she was asked to come back in and told that Mr 

Wickham and Ms Green would need to show her written response to higher levels of 

management. 

[16] The applicant described another meeting she attended with Mr Wickham and Ms 

Green and Mr Outram acting as her support person, but she could not remember the date. This 

was in the Newcastle Stevedores offices, as the Patrick offices were being painted. She was 

upset about this as she had previously worked for Newcastle Stevedores between 2002 and 

2009 and did not want anyone there knowing what was happening. She had expressed her 

distress that Patrick was not making a decision. She felt that she had been judged guilty from 








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the start. She was told that a decision would likely be made at a further meeting in the new 

year. The applicant attended a further meeting with the same parties on 13 January 2014. Mr 

Wickham read out a letter setting out that she was dismissed (see para [3]). 

[17] In further evidence, the applicant described an aggressive altercation she had 

witnessed between Mr Nichol and Mr O’Connell while Mr O’Connell was on a crane and Mr 

Nichol was working in the ship. Mr Nichol had yelled words to the effect of ‘Come down 

here, get out of the cab, come down here, I’ll kill you’ over the two-way radio. Mr O’Connell 

responded in kind. She had told the Team Leader, Mr Cassidy of this incident, but after he 

listened to it, he had been unconcerned and no action was taken.

[18] In oral evidence, the applicant agreed that she had been spoken to about the incident 

on 27 or 28 November, 4 and 19 December 2013 and 9 and 19 January 2014. However, she 

had not been provided with notes made by the respondent during these conversations. 

[19] The applicant clarified that she had been working in the shed when she spoke to Mr 

Gorlicki over the two-way radio about the forklift. She had known he was on the forklift 

because she had seen his truck around the corner of the shed. There was no load coming out 

of the ship at the time as the workers were engaged in changing the crane lifting gear. 

Somebody had responded to her over the radio by saying ‘Shut the fuck up, Suzie’ and she had 

thought it was Mr Gorlicki. She had stood up on the step of his forklift and spoken to Mr 

Gorlicki sternly when he came back into the shed as she was annoyed to think that he would 

talk to her in that way. However, she had not been yelling. Mr O’Connell and Mr Ferguson 

had been working with her in the shed at the time. Mr Ferguson was about five or six metres 

away on his operational forklift and would not have been able to hear them.

[20] The applicant was shown the original written complaint made by Mr Nichol. It was in 

the following terms:

‘Approximately 3am in morning  27-11-13. Susan was shouting in a very agressive 
[sic] manner to forklift driver over the two-way radio. It went on for a few minutes. I 
said over the radio shut up Suzy (She was shouting insults).

At smoko 5am was sitting in Lunch Room having a snack.








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Susan came storming in shouting at top of her voice. If you tell me to shut up again I 
will punch you in the head.

Susan stormed across the room and grabbed me by the throat still yelling very 
aggressive [sic]. 

I told her 3 times never grab me again.

I could not sleep all day because was very upset by her agressive [sic] behaviour.’

The applicant claimed that she had never been shown this document before, or had it read to 

her or summarised for her. She denied shouting or that she had threatened to punch anyone in 

the head.

[21] The applicant was shown the witness statements of Mr Nichol and Mr Ferguson. She 

denied she had shouted insults over the two-way radio and specifically that she had called Mr 

Gorlicki an ‘imbecile’. She had simply asked him when he was going to get the forklift back 

into the shed. In any event, the incident in question had occurred at 11:00pm, not 3:00am. The 

applicant denied Mr Nichol would have needed radio silence when he was in the hatch of the 

ship, as this was not really possible where there were ten people using the same channel. 

People could not speak over each other and only one person could be heard at a time. She had 

not responded when she had been told to ‘Shut the fuck up’.

[22] The applicant believed that Mr Gough, Mr O’Connell, Mr McIntyre, Mr J Roach, and 

possibly Mr Ferguson were present in the meal room during the confrontation between herself 

and Mr Nichol. She described the room in which the incident took place as being rectangular 

and about six metres long. The applicant was also shown a ‘mud map’ of the room drawn by 

her, which demonstrated that Mr Nichol was the furthest away from anybody from the door. 

Mr Nichol was sitting at his usual table on the aisle. 

[23] The applicant explained she had walked in and sat next to Mr Gough, who was eating 

an Indian takeaway and she asked him where hers was. He replied that it was in the fridge. 

She had walked over to the fridge, taken out the food, and put it in the microwave. She 

grabbed plastic cutlery and talked to Mr Cox. She turned around and addressed Mr Nichol in 

words to the effect of, ‘And by the way, don’t you ever talk to me like that again.’ She was 

about two and a half metres away. He had replied ‘And what are you going to do about it’. 

She had replied, ‘I will smash you’, but not in an aggressive fashion. Even so, she regretted 








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having made this comment. Mr Nichol had replied ‘Come on, come on then’, but this was not 

said in an aggressive fashion either. She had thought they were just ‘fooling around’. She 

walked up to him, with the cutlery and takeaway container lid still in her hand and pointed her 

finger at him. She may have ‘brushed’ his shoulder or collar with one hand, but not two. She 

had not ‘cuddled’ him and they were about arms-length from each other. He had punched her 

in the throat and then said ‘Don’t you touch me, don’t you put your hands on my throat’ and ‘I 

will put charges on you.’ She could not recall replying to Mr Nichol. She then sat down, but 

did not feel like eating at this point. 

[24] The applicant could not really recall what happened next, though there was a separate 

discussion taking place about the possibility of extending twelve hour shifts under the 

enterprise agreement. Mr Nichol had acted like nothing had happened at a subsequent break at 

5:00am. She was rung at home at 9:00am after this shift and told that she and Mr Nichol 

would be stood down. 

[25] The applicant denied that Mr Wickham had read any statement out to her at their first 

meeting on 28 November 2013. She had not seen the notes he had made at that meeting until 

this proceeding. They were as follows:

‘Asked if Forklift driver would be available soon. Then over the radio I head a person 
say “Shut Up Susie”. I challenged forklift driver why he told me to shut up & he said 
“Get your facts straight - it was Niko” (Meaning Paul Nichol.) Continued working.

In the lunchroom we sat down & I turned around and said “dont you ever talk to me 
that again [sic] + will smash you Paul said “go on then”.
I walked over to him and touched under the chin. At this point Paul punched me in the 
neck. I was in a little bit of a shock as I do not expect it from Niko.

There is a history of harassment from Niko.
People who witnessed it: Bradley Mackerras

David Gorlicki (FL Driver)
Jake Roach
Justin Ferguson
Steve O’Connell’

The applicant clarified that when relaying what had been said to her over the two-way radio, 

she had said ‘Shut the mmm up Suzie’ and thought that it would be understood that she meant 

‘Shut the fuck up Suzie’. Mr Gough had been there as her support person in that meeting and 

may have clarified this point as well. 








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[26] The applicant had sought to ‘touch’ Ms Green at the meeting on 9 January 2014 to 

demonstrate how she had ‘touched’ Mr Nichol. She did not think Ms Green was ‘shocked’ at 

this and she had not said anything. She denied that she had said that Mr Roach should not 

retain his position, though she had said that people were unhappy at the approach that he and 

Mr Grech were taking in allocating shifts. She further denied that she had said that she would 

not work under Mr Roach’s direction. She also agreed that she had made allegations about the 

local delegates (Mr Carter and Mr Grech) as playing a part in Mr Nichol’s complaint. Mr 

Carter did not like her as she had taken offence to his use of the word ‘scab’ and an allegation 

that non-Union workers had been bashed in front of their families. 

[27] Throughout her time on the Newcastle wharves since 2002, the applicant had never 

known the Union to take a member to the boss to make a complaint about another member. 

Usually, a complaint would be made to the delegate and then the delegate would ring the 

Union’s office. She did not know what would happen after that, but the issue would be sorted 

out internally. 

[28] In cross examination, the applicant agreed that she was aware of the Asciano Code of 

Conduct and that she had attended a number of workshops setting out the requirements under 

the Code. This set out her obligations to take care of herself and others and to demonstrate 

respect to customers, colleagues and the public. She understood that if she failed to comply 

with these standards, she could be dismissed and she was required to raise any breaches of 

conduct or policy with a Manager or Supervisor. She understood direct violence or 

threatening body language could be construed as bullying under the Code. She had not 

initially felt it was necessary to report Mr Nichol, saying ‘You work on the wharf, you get a 

bit of a hard shell.’

[29] The applicant denied referring to Mr Gorlicki as an ‘imbecile’ or in a disrespectful 

manner over the two-way radio. She agreed that she had been frustrated that she was getting 

all night shifts (the ‘Dog Watch’) and she thought that Mr Grech was favouring his friends by 

allocating them the better shifts. While she could not recall whether the person on the two-

way radio said ‘Shut the fuck, Suzie’ or ‘Why don’t you shut the fuck up Suzie’, she insisted 

that the word ‘fuck’ had been used. She accepted that her evidence that she had only used the 








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two-way radio to communicate with Mr Nichol in the hold of the ship, was inconsistent with 

her evidence of her communications with Mr Gorlicki.

[30] The applicant repeated her evidence that the physical confrontation between herself 

and Mr Nichol took place during the first break at approximately 11:00pm, rather than on the 

second one at 5:00am. She had entered the meal room, spoke to Mr Gough and Mr Cox, both 

of whom were sitting down. She denied entering the room and telling Mr Nichol, ‘If you tell 

me to shut up again, I’ll punch you in the head.’ She did not think her conduct in walking five 

steps towards Mr Nichol and saying, ‘I’ll smash you’ was aggressive or threatening as they 

were friends and it was not said in an aggressive manner - she thought that it was just banter.

[31] The applicant denied that Mr Wickham had read her the complaint of Mr Nichol (see 

para [20]). He had simply asked her what had happened as Mr Nichol had reported that she 

had ‘strangled’ him. Mr Gough had referred to the use of the word ‘fuck’, but this was not 

reflected in Mr Wickham’s notes. It was not a true record of what she said. The applicant 

clarified that the reason her hand touched Mr Nichol’s shirt was because he punched her in 

the throat, though she accepted that her own written response of 18 December 2013 referred 

to her being punched ‘straight into my chin’. She conceded her evidence on this point was 

inconsistent. Her finger would have touched his collar on his shoulder and not the chin, as 

referred to in Mr Wickham’s notes. 

[32] The applicant accepted that Mr Nichol had said ‘You strangled me and that’s abuse’ in 

a loud, aggressive tone. It was possible that he had said ‘Never grab me again’ or ‘Don’t 

touch me again’. She denied that she had her hands around his throat. He had also said 

something like, ‘I could charge you.’ She thought that Mr Nichol was trying to set her up. She 

acknowledged that she had left some of these statements out in her original written response 

to Patrick.

[33] The applicant conceded that she had not reported the incident to Management or a 

Team Leader, because ‘that’s not how Union members go about things.’ She agreed she was 

in a relationship with Mr Gough, but she had not reported this incident to him either. She had 

not reported the occasion on which Mr Nichol had struck her on her helmet with a radio as he 

was just ‘clowning around’ and she did not think he was bullying her. 








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[34] The applicant agreed that she had signed Mr Wickham’s notes of her interview on 28 

November 2013 (see para [25]) and that Mr Gough had witnessed her signature, although they 

had been walking out the door when Mr Wickham had handed it to them to sign. She had not 

read it. She accepted that there had been no duress applied to her or Mr Gough to sign this 

document. By this point she had skipped two days’ sleep and was stressed. She could not 

recall if she had told Mr Wickham this. She did not realise that Mr Wickham’s notes were 

meant to be her statement. The written response she had provided to Patrick on 19 December 

2013 better reflected the truth of the incident.

[35] The applicant was shown a document which was said to identify her starting a shift on 

27 November 2013 at 11:00pm. The applicant could not recall working between the shift on 

which the incident took place and the meeting with Mr Wickham and specifically could not 

remember working a shift of 11:00pm-7:00am on 27-28 November 2013. She agreed that Mr 

Wickham’s notes set out that their meeting had occurred on 28 November 2013.

[36] In response to a question from me, the applicant stated that she had not been told who 

had come forward to confirm Mr Nichol’s version of events on or around 28 November 2013. 

She now knew that person to be Mr McIntyre.

[37] In re-examination, the applicant clarified that the training in relation to bullying had 

emphasised that if an employee had felt bullied, they should report it. 

[38] The applicant agreed Mr Wickham had never asked her to adopt his notes as a true and 

correct account of the meeting. 

[39] The applicant said that she had spoken to Mr O’Connell and Mr Gough after the 

incident with Mr Nichol. Mr O’Connell had noted that Mr Nichol was ‘not himself’. She had 

spoken to Mr Nichol during the second break and he had said something about sleeping in the 

bush the night before. 

Mr Bradley Mackerras

[40] Mr Mackerras has worked at Patrick’s operations in Newcastle since they began and 

has been a member of the Union since 1992. He was working as a Crane Driver on the night 








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of 27 November 2013. He is usually rostered as a Team Leader or in a crane. In these roles, 

he hears all communications over the two-way radio.

[41] Mr Mackerras claimed that he had not heard the applicant engage in any abusive or 

inappropriate communications on the night of 26-27 November 2013. He remembered Mr 

Nichol saying, ‘Shut the fuck up Susie and get on with your job’, although he did not think 

much of this at the time as he thought that they were friends and these sorts of comments 

usually went both ways, without either person taking offence.

[42] It was Mr Mackerras’ evidence that he was the closest person to Mr Nichol in the meal 

room during the second break at 5:00am. He did not see her enter the room and shout at Mr 

Nichol or grab his throat, although he was not watching them as he was reading the enterprise 

agreement. He acknowledged that he was tired after working four twelve hour shifts. He 

recalled Mr Gough raising his voice and saying, ‘I paid good money for that.’

[43] Mr Mackerras offered his opinion that the applicant usually got on well with people 

and did not behave aggressively, abusively or inappropriately. He described her as ‘one of the 

best Tally Clerks we had’. He praised her work performance and he had put this to Patrick 

when it was proposed to dismiss her. He would have no difficulties in working with her again.

[44] In oral evidence, Mr Mackerras explained he was the Shift Delegate for the Union on 

the night of 26-27 November 2013, meaning that he had been elected for that shift at the 

preceding Toolbox Meeting. While driving the crane, he would use the two-way radio to 

communicate with the ‘Grade 5 down below’ and other persons on the wharf. 

[45] Mr Mackerras was shown Mr Nichol’s original complaint (see para [20]. He could not 

recall the applicant having said anything derogatory or ‘shouting insults’ over the two-way 

radio that night or anything to the forklift drivers at all. When asked what he would have done 

if someone had been ‘shouting insults’ over the two-way  radio, Mr Mackerras was unsure 

and explained that ‘we have a laugh sometimes on the radio’ but generally people were not 

aggressive over the two-way radio as they were mindful that the Supervisor has a radio in 

their office. However, generally there were no Supervisors on shift during the ‘Dog Watch’ 

shifts. As Shift Delegate and a Grade 6 employee, he would try to talk to people to sort out 








[2014] FWC 7775

15

any issues which arose on the shift. Some things said in the heat of the moment were best left 

alone. 

[46] Mr Mackerras acknowledged that he had not mentioned Mr Nichol having said ‘Shut 

the fuck up, Suzie’ over the two-way radio when he had met with Patrick representatives on 28 

November and 9 December 2013. He believed he had been on the deck of the ship at the time 

and the crane would have been in operation. as he had been very tired on the night in 

question, he had not recalled until later when he had been preparing his statement with 

lawyers. In any event, ‘I didn’t see or hear anything’ would be the ‘typical wharfie statement’ 

as they were disinclined to ‘dob each other in.’

[47] Mr Mackerras’ evidence was that he was less than one metre away from Mr Nichol in 

the meal room. He had been sitting behind the table with his back to the window and had been 

looking at the enterprise agreement to see how many 12 hour shifts they could do on 

extensions. Some employees (Mr Nichol and Mr Gough) had brought to his attention that they 

were on their third 12 hour shift and they could not do more than three over midnight. Mr 

Mackerras stated that he had not heard the applicant ‘storm into’ the meal room or threaten to 

punch Mr Nichol in the head. It was a small room and he would have heard it, as he was 

sitting so close by. He specifically could not recall the applicant grabbing Mr Nichol by the 

throat and raising her hand as if to strike him.

[48] Mr Mackerras said he was aware of a complaint the applicant had made about how Mr 

Carter had come to be elected as Union delegate. This issue was raised before 27 November 

2013. Mr Mackerras said he had been a Union member since 1992. Typically, where there 

was a dispute between Union members, one would cite another to appear before a Union 

representative and a decision would be made as to who ‘was in the wrong’. This could result 

in a fine or reprimand through the Union. At that time, he was unaware of any delegate 

making a complaint about another member to management.

[49] Mr Mackerras agreed he had signed a ‘petition’ circulated by Mr Gough in the 

following terms:

‘I / We have worked with Susan Francis at Patrick Stevedores up until her dismissal, 
during that time I / We have found Susan to be pleasant, honest and a genuine person 
that is always willing to help others.








[2014] FWC 7775

16

I / We know Susan to be a hard worker and good at any of the duties of work she was 
given.

I / we would also like to state that I /We would not have any problems working with 
Susan at Patrick Stevedores again if she was given the opportunity.’

[50] In later evidence, Mr Mackerras agreed that he had been aware that Mr Gough was in 

a relationship with the applicant when Mr Gough brought the petition to him to sign.

[51] In cross examination, Mr Mackerras agreed that the Grade 5 with whom he was in 

two-way radio contact while in the crane (Mr Nichol) was responsible for discharging the 

hatch and that the use of the two-way radio was integral to safety. If someone had been using 

the two-way radio unnecessarily, this could compromise safety. Even so, he did not consider 

the use of the term ‘imbecile’ over the two-way radio to be abusive. It may be inappropriate, 

but it happened regularly. He could not recall the applicant calling Mr Gorlicki an ‘imbecile’ 

or using the radio to air her frustrations over the roster. Mr Mackerras restated that Mr Nichol 

had said ‘Shut the fuck up Suzie and get on with your job’ rather than ‘Shut up Suzie’.

[52] Mr Mackerras was shown a record of interview dated 28 November 2013 and marked 

‘Susan Francis/Paul Nichol incident’ conducted by Mr Wickham which simply stated, ‘I did 

not hear or see anything.’ He had read it before signing it. The first time he recalled the use of 

the expression ‘Shut the fuck up, Suzie’ was after being prompted by the applicant’s Counsel. 

Mr Mackerras was shown the notes made by Ms Green of a further interview conducted by 

Mr Wickham and Ms Green. Mr Outram of the Union was also present. He acknowledged 

that these notes set out that he had been ‘thinking about it’ and that his recollection of the 

incident between the applicant and Mr Nichol in the meal room was similar to the evidence 

given above (see para [42]), and that he was not aware of the ‘radio incident’.

[53] In re-examination, Mr Mackerras deposed that Mr Wickham had not described the 

allegations made by Mr Nichol, he had just asked him what had happened. Nor could he recall 

if it had been put to him at the meeting of 9 December 2013 whether Mr Nichol had said, 

‘Shut the fuck up, Suzie’, they had simply asked if he could remember anything that he had 

heard over the radio. 

Mr David Gorlicki








[2014] FWC 7775

17

[54] Mr Gorlicki has worked for Patrick in Newcastle since August 2012 and has been 

employed by Patrick since 2004, having previously worked in Port Kembla.

[55] In his written statement, Mr Gorlicki referred to the letter sent to the applicant on 16 

December 2013 (see para [13]). He had been driving the forklift on the night shift on 27 

November 2013. He could recall that the applicant had been talking on the radio, but could 

not recall exactly what she was saying. He could not recall her having said anything ‘abusive’ 

or ‘inappropriate’. However, he did hear Mr Nichol, who was working in the hull of the ship 

say, ‘Shut the fuck up, Suzie and just do your job.’ He did not remember if the applicant had 

responded. He described Mr Nichol’s comment as derogatory, especially considering it was 

made in public. Mr Gorlicki said that when he returned the forklift to the warehouse at the 

applicant’s request, she approached him and asked why he had spoken to her like that over the 

radio. He replied that it had been Mr Nichol, not him. 

[56] Mr Gorlicki had been in the meal room at 5:00am when the confrontation between the 

applicant and Mr Nichol occurred. He could not recall the applicant entering the room, 

walking directly to Mr Nichol and shouting at him or grabbing his throat. He described the 

dimensions of the meal room, noting that it was small. He would have seen this if it occurred. 

Mr Gorlicki described the relationship between the applicant and Mr Nichol as having been 

previously friendly. If there had been aggression between them, he would have thought it was 

unusual. 

[57] Mr Gorlicki claimed that he had never received copies of the notes taken by the 

Patrick representative after the meetings he had had with the Company in relation to the above 

incidents.

[58] In oral evidence, Mr Gorlicki agreed that the applicant would have been talking to 

him on the two-way radio on the relevant night. He was driving the forklift at the time, and 

the two-way radio was on his chest. She was not shouting insults at him.  Nor had she called 

him an ‘imbecile’. Mr Nichol had said ‘Shut the fuck up, Suzie and just do your job.’ 

[59] Mr Gorlicki said that when he returned to the warehouse, the applicant spoke to him in 

a ‘stern’ fashion. She was about two metres away from him and he was seated on the forklift. 

It was turned off and there were other people nearby putting away steel plate which had been 








[2014] FWC 7775

18

discharged from the ship - probably Mr O’Connell, who was approximately 30 or 40m away. 

He could not recall how far away Mr Ferguson was.

[60] Mr Gorlicki was shown notes of an interview conducted with him by Mr Wickham. 

They were as follows:

‘We were discharging Plate. Niko said something something [sic] cheeky. I do not 
recall what. Suzie made accusation to David. David responded that he was not me [sic] 
it was Paul that said the comment.

At smoko 5AM did not see Paul + Suzie together although I do remember Suzie being 
heated.’

Mr Gorlicki could not say whether this account reflected what he had said to Mr Wickham on 

28 November 2013, though he referred to the wharfies’ rule of ‘looking after your mates’ and 

noted that this included Mr Nichol. 

[61] Mr Gorlicki acknowledged he had signed the above notes, but could not recall what 

Mr Wickham had said to him when he was asked to sign. He had not been asked whether the 

applicant had called him an ‘imbecile’ and the respondent’s representatives had not asked if 

she had been sending insults over the two-way radio. They had merely asked as to the manner 

in which she had spoken over the two-way radio.

[62] Mr Gorlicki could not recall the applicant having shouted at Mr Nichol, saying words 

to the effect of ‘Don’t you ever talk to me like that again’ or her having grabbed Mr Nichol by 

the throat. Nor had he heard the applicant say ‘If you tell me to shut up again, I will punch you 

in the head.’ It was a small room and he would have seen and heard this had it occurred.

[63] Mr Gorlicki was shown a document said to be the relevant roster. He agreed that it set 

out that a shift began at 11:00pm, Wednesday 27 and finished at 7:00am on Thursday 28 

November.

[64] In cross examination, Mr Gorlicki conceded that he had been mistaken in previously 

stating that the two-way radio incident took place at approximately 3:00am. This had become 

clearer when preparing for the proceeding with Mr Howell. 








[2014] FWC 7775

19

[65] Mr Gorlicki agreed that referring to someone over the two-way radio as an ‘imbecile’ 

would be aggressive and abusive behaviour. However, this had not been said to him by the 

applicant. He denied that he said this only because of the ‘wharfies’ rule’. He could not recall 

the applicant making complaints about the roster over the two-way radio.

[66] Mr Gorlicki was again shown the notes prepared by Mr Wickham after their meeting 

(see para [60]) and Mr Nichol’s complaint (see para [20]). He denied that Mr Wickham had 

read Mr Nichol’s complaint to him at the interview on 28 November 2013. He could not recall 

the exact allegations about the applicant which had been put to him by Mr Wickham, although 

he remembered Mr Wickham telling him about an incident in the meal room at 5:00am. 

However, he had not referred to the applicant grabbing Mr Nichol’s throat. Mr Wickham had 

asked him to read the notes and sign them if it represented what had happened. However, he 

had not seen a physical assault by the applicant on Mr Nichol or a physical assault by Mr 

Nichol on the applicant in the meal room.

[67] Mr Gorlicki explained that he had not initially referred to Mr Nichol’s use of the 

phrase, ‘Shut the fuck up, Suzie’ as both the applicant and Mr Nichol were friends of his and 

he did not want to get either of them in trouble. He accepted his evidence on this point was 

different to what he had put to Mr Wickham on 28 November 2013. 

[68] Mr Gorlicki clarified that the applicant was not standing on the step of the forklift 

when she remonstrated with him about telling her to ‘Shut the fuck up’ - she was about two 

metres away. 

[69] Mr Gorlicki was shown notes of a meeting attended by him, Mr Wickham, Ms Green 

and Mr Outram on 9 December 2014. These notes were as follows:

‘Agreed with statement
 Know was cheeky thought “I know how it would’ve affected me”, can’t recall 

exactly what said
 OK if both party know cheeky but didn’t
 What was the accusation? couldn't recall, She was annoyed, thought it was me, not 

PN.
 When told not me, said “Ok then walked off.
- seating plan - agree with where PN was, don’t recall where Suzie was.
- when heard of this, tried to recall where she was but can’t, don’t think she was in the 
room’








[2014] FWC 7775

20

He could not recall what statement he was said to have agreed with, but agreed he had signed 

the document.

[70] Mr Gorlicki acknowledged that he had been trained in relation to bullying, harassment 

and the Code of Conduct on 19 September 2013. Using the phrase ‘Shut the fuck up, Suzie’ 

would have breached these requirements and he would have been obliged to report this 

behaviour, if he had witnessed it. However, he explained that he would have preferred to have 

dealt with a dispute like this himself. Indeed, the training he had received that day had 

encouraged employees to try to resolve the situation themselves. 

Mr Denis Outram

[71] Mr Outram was Acting Branch Secretary of the Union from mid-late November 2013 

when the Branch Secretary took annual leave. 

[72] In his written statement, Mr Outram explained that he had spoken to Mr Nichol at 

approximately 5:00am on 27 November 2013 by telephone. He was seeking advice as to 

whether the night shift could extend after twelve hours. Mr Outram hung up and called him 

back approximately 15 minutes later to say that this was not allowed under Part A of the 

enterprise agreement. Mr Nichol acknowledged this answer and the call ended.

[73] Mr Outram referred to Mr Nichol’s statement and denied that Mr Nichol had raised 

any allegation of a physical assault by the applicant. He did not believe that Mr Nichol had 

sounded upset when he had spoken to him.

[74] In cross examination, Mr Outram confirmed that the telephone call from Mr Nichol 

had been ‘around 5am’. He did not believe that the second phone call had occurred before 

5:00am in any event. He could not say whether the phone calls had taken place before or after 

the alleged physical confrontation between Mr Nichol and the applicant.

Mr David Cox

[75] Mr Cox has been working for Patrick in a casual capacity since February 2013. He has 

not worked for Patrick in Newcastle since January 2014 and is otherwise employed.








[2014] FWC 7775

21

[76] Mr Cox referred to the letter sent to the applicant by the respondent on 16 December 

2013 (see para [4]). He explained that he was not carrying a two-way radio and therefore 

could not comment on any exchange between the applicant and Mr Nichol over the two-way 

radio. 

[77] Mr Cox deposed in the second smoko at 5:00am on 27 November 2013, he made 

himself a coffee and sat with his back facing the wall. The applicant had sat at the table 

directly opposite him and Mr Nichol was at the table behind her. After sitting for a few 

minutes, the applicant moved towards Mr Nichol and said something as she did so. She was 

not shouting. She had raised her hands towards Mr Nichol, but Mr Cox insisted that she did 

not grab him around the neck. It looked as though she was reaching to pull his collar. Mr 

Nichol had reacted by saying words to the effect of, ‘Don’t you touch my fucking throat’. Mr 

Cox now realised that ‘something serious’ was happening. The applicant moved back and Mr 

Nichol directed a closed fist punch at the applicant, although he could not see if it connected. 

However, the applicant did not fall back. 

[78] Mr Cox said that the applicant then came down and sat next to him. She had not said 

anything and neither had anyone else. He asked her what had happened later in the shift. He 

had spoken to Patrick twice about what had occurred, although there had been a delay, as 

Patrick’s records did not reflect he was on shift that night. He had been shown notes made 

during these meetings, but had not been given a copy.

[79] In oral evidence, Mr Cox confirmed that the physical incident between the applicant 

and Mr Nichol had occurred during the second smoko on the shift. 

[80] Mr Cox was shown notes of a meeting which he attended with Mr Wickham and Mr 

Roach marked ‘Susan Francis/Paul Nichol incident’. They were expressed as follows:

‘David was sitting at Suzie’s table.

Suzy got up from her seat walked over to Paul. David said Suzy made some sort of 
physical approach. David saw Niko (Paul Nichol) throw a punch in Suzies direction 
but to my knowledge it was not going to connect. Following on from this Paul yelled 
out “don’t touch my throat”. That was the end of it.’








[2014] FWC 7775

22

[81] In cross examination, Mr Cox conceded that Mr Nichol and the applicant could have 

entered the meal room before him or after him. He could not recall if the applicant was 

already seated at his table when he sat down. Her dinner was already on the table and he could 

not remember her getting up to go to the microwave. He had not heard the applicant turn 

around and say, ‘Don’t you ever talk to me like that again’ to Mr Nichol.  He had not heard 

the applicant say, ‘I’ll punch you in the head’. 

[82] Mr Cox had seen the applicant place both her hands near Mr Nichol’s collar region, 

but could not say exactly where, as his view was blocked. He thought that they were just 

‘mucking around’. It could be a type of threatening behaviour and it was only after this point 

that Mr Nichol reacted by raising his own hand. He had yelled out before punching the 

applicant with his right hand. They were approximately one metre apart and Mr Nichol had 

thrown a punch across the table. 

[83] Mr Cox insisted he had not spoken to the applicant or anyone else about this incident 

between its occurrence on 27 November 2013 and his first interview by Patrick on 4 

December 2013. He had thought that it was a ‘bit of a joke’ and he had not reported it. He 

could not recall having seen Mr Nichol’s complaint (see para [20]).  He accepted that the 

notes of his interview of 9 December did not refer to a ‘closed fisted punch’. However, he did 

not accept a distinction between this and his reference to a ‘punch’. Mr Cox acknowledged 

that he should probably have reported the incident.

Mr Bradley Gough

[84] Mr Gough has been working at Patrick’s Newcastle operations since August 2011. On 

most shifts prior 27 November 2013, he had been rostered as a Team Leader, although he has 

not been rostered as a Team Leader since then and casual employees now fill this role. He is 

in a ‘relationship of sorts’ with the applicant.

[85] In his written statement, Mr Gough referred to the letter sent to the applicant by 

Patrick on 16 December 2013 (see para [13]). He explained that on the night shift of 26 

November 2013, he had had a two-way radio in his capacity as Team Leader. As Team 

Leader, he would be ‘keeping an ear on what is going on’. He had not heard the applicant 

engage in any inappropriate behaviour. He was conscious of any perception of favouritism 

involving the applicant and would have ‘pulled her up’ if he had. However, he did hear 








[2014] FWC 7775

23

someone say, ‘Shut the fuck up, Suzie’, to which there was no response. He thought someone 

was just ‘mucking around’. 

[86] Mr Gough said that he was present in the meal room during the smoko in which the 

alleged physical confrontation between the applicant and Mr Nichol took place, but he could 

not recall if it was at 5:00am or earlier. He was sitting and eating his dinner as a few other 

people entered the room. The applicant entered, walked up to him and talked to him about log 

sheets and then went to put her dinner in the microwave. He did not witness the confrontation, 

as he had gotten up to make himself coffee. Nevertheless, he specifically refuted that the 

applicant had entered the meal room shouting and walked directly to Mr Nichol. He had heard 

Mr Nichol say words to the effect of ‘Don’t touch me’ and ‘I’ll have you up for assault.’ 

Again, he thought that they were just having a joke, as they usually did.

[87] Mr Gough did not believe that there would be any issues that would prevent him from 

working with the applicant if she were reinstated. He described her as one of the best Tally 

Clerks at Patrick’s Newcastle port.

[88] In oral evidence, Mr Gough confirmed that he had acted as the applicant’s support 

person at the first interview and was interviewed by Ms Green and others at a later point.

[89] Mr Gough recalled the applicant calling Mr Gorlicki for assistance over the two-way 

radio and this was why he knew that the applicant was not ‘shouting insults’ or had called 

anyone an ‘imbecile’. At some point she had said words to the effect of, ‘Dave Gorlicki 

whereabouts are you? We need a hand in the shed. Can you come into the shed and give 

Justin and myself a hand sorting out cargo?’  He thought that the time that Mr Nichol said 

‘Shut the fuck up, Suzie’ would have been around 11:00pm and that people were working with 

steel plate on the wharf at the time. Mr Nichol was working as the Hatch Foreman.

[90] Mr Gough deposed that he had not been in the meal room at the 5:00am break, 

although he had been there for the first break. At 5:00am, he could recall Mr Nichol and Mr 

Mackerras were discussing shift extensions under the enterprise agreement. Mr Nichol had 

called Mr Williams and then Mr Outram from the Union, at around this time.








[2014] FWC 7775

24

[91] It was Mr Gough’s evidence that when he had heard Mr Nichol say ‘Don’t ever touch 

me again’, he had turned around and saw Mr Nichol ‘ranting and raving’, but there was 

nobody near him. The applicant was standing two metres away from Mr Nichol. Mr Nichol 

had repeated ‘Don’t ever touch me again’, two or three times. Mr Gough said something like, 

‘Some people have got to pay for that’ as a joke. He left the room. 

[92] Mr Gough expected that where members of the Union have a grievance with each 

other, they would usually go to the Shift Delegate. If the Shift Delegate was unsuccessful in 

resolving the difficulties, it would be brought to the attention of more senior Union officials.

[93] Mr Gough was shown notes of a meeting between the applicant and Mr Wickham with 

Mr Ryan. Mr Gough had attended as the applicant’s support person (see para [25]). The notes 

had not been read to him, but he had signed them at the time. He and the applicant had both 

had very little sleep. He had actually called the Operations Manager to postpone the meeting 

as he felt that the applicant was in no state to participate, but she later said she just wanted ‘to 

get it over and done with’ and they attended. The applicant had been crying throughout the 

interview. Mr Gough claimed that the applicant had gestured rather than actually sworn in the 

interview when she referred to the comments directed to her over the two-way radio. She had 

substituted the word ‘fuck’ with ‘eff’ as she did not want to swear in front of management.  

Mr Nichol’s complaint had not been read to them and their request to view it was refused. 

After they left the room, Mr Wickham had called out to them in the hallway and asked them 

to sign the notes. He and the applicant had done so, but the applicant was ‘an emotional 

wreck’. In any event, he did not believe it was a complete record of the interview.

[94] Mr Gough was shown a document said to be reflective of rosters. He said that he had 

attended a shift on the evening of 27-28 November 2013. In later evidence, Mr Gough agreed 

that the roster appeared to demonstrate that the applicant had also been on a shift on the 

evening of 27-28 November 2013.

[95] Mr Gough agreed he had prepared and circulated a petition in support of the applicant 

(see para [49]). Mr Paul Curtley, who was on night shift, had also organised for a number of 

people to sign it.








[2014] FWC 7775

25

[96] In cross examination, Mr Gough emphasised his impartiality, despite his ongoing 

relationship with the applicant. He had not seen her witness statement and he could not say 

whether she had seen his statement.

[97] Mr Gough did not accept that calling someone an ‘imbecile’ over the two-way radio 

would be abusive, but agreed that it would be inappropriate. In any event, he had not heard 

the applicant call Mr Gorlicki an imbecile. There was not much talk over the two-way radio 

that night and some workers on the ship were using hand signals, rather than the two-way 

radio as the area was well lit. The applicant had said ‘Dave Gorlicki, where are you? Can you 

come into the shed and help Justin’ rather than ‘Are you going to bring that forklift into the 

shed or what?’ He believed that these comments amounted to pretty much the same thing. He 

agreed that there had not been a supervisor on this particular shift and he was the highest 

ranking member of the team on the shift.

[98] Mr Gough elaborated that he had heard someone say ‘Shut the fuck up, Suzie’ about 

one hour before the first break, at about 11:00pm. He had not known it was Mr Nichol at the 

time. He accepted that this was inconsistent with the notes made of his interview on 10 

December 2013, which set out that this had occurred at about 3:00am. He had read and signed 

these notes without amendment. He could have missed it and noted that the date of the notes 

was also incorrect in that they set out that the interview occurred on 10 December 2013. He 

believed that it had taken place in January 2014 as it had been ‘well over a month’ after the 

incident. In fact, he had complained about the delay to Ms Green and Mr Wickham.

[99] Mr Gough agreed that he had referred to the applicant as ‘feisty’ in the interview with 

Ms Green because she was outspoken and stood up for what she believed in. This did not 

mean she would be forceful to the extent of assaulting someone. Mr Gough accepted that he 

could not give evidence about whether a physical incident had occurred between the applicant 

and Mr Nichol in the meal room, as he had had his back turned to them. Mr Nichol’s voice 

had been raised, but he did not sound angry or aggressive. He accepted that Mr Nichol saying 

‘Don’t touch me’ was likely to be in response to being touched.

[100] Mr Gough acknowledged that he had attended training in relation to bullying and 

harassment conducted by Ms Green in September 2013 and that this training set out the 

requirement for respectful behaviour. He had been responsible on the night of 26-27 








[2014] FWC 7775

26

November 2013 for reporting inappropriate behaviour and the comment, ‘Shut the fuck up, 

Susie’ should have been reported. However, Ms Green had emphasised at the training that 

they should try to resolve little incidents and he classed this one in that category. 

[101] Mr Gough agreed that he was unaware of what Mr Curtley may have said to persons 

signing the ‘petition’ in support of the applicant (see para [49]). He was disappointed in the 

conduct of Mr Nichol and Mr Carter in relation to this matter. He did believe they had lied, 

but had rather exaggerated the issues. He agreed that he had published the following 

comments on his Facebook account:

‘Can’t believe the c#nts [sic] I have to work with, and their bullshit lies. everyone will 
find out, count on it.

...

All the bullshit with Sussie

...

No unity on the wharves anymore. very disappointed in the action of a few people.’

[102] Mr Gough did not accept that the applicant would experience difficulty if she returned 

to the workplace, as they were all professionals. He accepted that there had been 

unprofessional interactions. He then said:

‘But we’re not professionals, we’re wharfies. You’ve got to understand that. We’re not -
what have we got to bring lawyers to work now, do we, to watch we [sic] to each 
other?’

[103] In re-examination, Mr Gough said he had had discussions with Mr Grech about 

complaints concerning  his rostering and criticised Mr Carter for having gone ‘straight to the 

boss’. Mr Grech had not been happy with the applicant because she was going to bring some 

of his rostering practices to the Committee’s attention. He also thought other people on the 

Union Committee might not have liked the applicant. 

For the respondent

Ms Tamara Green








[2014] FWC 7775

27

[104] In written evidence, Ms Green referred to the Asciano Group’s Code of Conduct and 

stated that she had given a presentation on the code, the ‘Asciano Values’ and the Bullying 

and Harassment Policy. The complaints process under this Policy sets out that a complaint 

should be made to the employee’s direct manager, then the ‘two up’ manager and, if not 

resolved, then with a Human Resources representative. 

[105] Ms Green explained that she became aware of the allegations of physical and verbal 

assault involving the applicant in the course of a phone conversation with Mr Wickham at 

approximately 7:30am, 28 November 2013. She had told Mr Wickham that an investigation 

needed to occur.

[106] Ms Green described her participation in a series of interviews of Patrick personnel on 

9 and 10 December in relation to these allegations. Mr Wickham had prepared a summary 

arising from previous interviews he had conducted and Ms Green used this as a guide. She no 

longer had a copy of this document. Mr Outram was present in each of these meetings as a 

support person. Mr Carter attended with Mr Nichol and Mr Gough had declined to have a 

support person.

[107] Ms Green claimed that in the course of each interview on 9-10 December 2013, Mr 

Wickham would read out a copy of the previous statement given by each person and each 

person confirmed that this statement was correct. They were also asked if a diagram setting 

out the locations of people in the meal room was accurate. Ms Green took notes during these 

interviews and showed them to each interviewee for them to read and sign. None of the 

interviewees asked for a copy of these notes. They were annexed to her statement in this 

proceeding. Ms Green used these notes to prepare a document, which she said established the 

following:

‘Claims/statements corroborated

(a) Mr Nichol’s claim that Ms Francis was shouting (over the radio) at operators in 
an aggressive manner was corroborated by Mr Ferguson;

(b) the Applicant’s claim that Mr Nichol said “Shut up Suzie” (over the radio) was 
accepted by Mr Nichol and corroborated by Mr Ferguson and Mr Gough;

(c) Mr Nichol’s claim that Ms Francis came storming into the meal room shouting 
was corroborated by Mr O’Connell;








[2014] FWC 7775

28

(d) Mr Nichol’s claim that Ms Francis stormed across the room and grabbed Mr 
Nichol by the throat was corroborated by Mr McIntyre;

(e) Mr Young and Mr Gough overheard Mr Nichol saying to Ms Francis don’t put 
your hands on my throat again;

(f) Mr McIntyre corroborated that Mr Nichol flicked Ms Francis’ hands away 
from his throat as a reaction to her grabbing his throat;

(g) Mr Cox corroborated that Mr Nichol remained seated;

(h) Mr Young, Mr Ferguson, Mr Cox and Mr O’Connell stated that they hadn’t 
witnessed this type of behaviour before and thought Mr Nichol and Ms Francis 
may have been playing around;

(i) Mr Gough and Mr Mackerras stated that they seen previous joking between Mr 
Nichol and Ms Francis but not like this; and

(j) Mr Mackerras confirmed that Mr Gough had made a comment like “I paid 
money for this”.

Claims/statements made by one person only

(k) Mr McIntyre confirmed that Ms Francis walked into the lunch room and 
straight up to Mr Nichol;

(l) Ms Francis sat down in the meal room and turned around and said to Mr 
Nichol “don’t you ever talk to me like that again”. That in response, Mr Nichol 
said “go on then”;

(m) Ms Francis walked over to Mr Nichol and touched him under the neck, and at 
this point, Mr Nichol punched Ms Francis in the neck;

(n) Mr Young confirmed that Ms Francis wasn’t sitting when he turned around in 
response to overhearing Mr Nichol saying don’t put your hands on my throat 
again;

(o) Mr Cox saw Ms Francis stand u;

(p) Mr Cox confirmed that Ms Francis had her back to him when he saw a punch 
but nothing heated;

(q) Mr J Roach notice Ms Francis was in a foul mood and had been complaining 
about shift equity;

(r) Mr Gorlicki heard Mr Nichol made [sic] a cheeky comment over the radio;

(s) Mr Gorlicki confirmed the Applicant accused him of the making the comment, 
but could not recall the exact accusation;








[2014] FWC 7775

29

(t) Mr Gorlicki could not remember where Ms Francis was in the meal room;

(u) Mr O’Connell confirmed that ms Francis walked into the meal room and 
started [sic] “Niko, don’t ever talk to me like that again”;

(v) Mr Gough confirmed that he knows Ms Francis can be feisty;

(w) Mr Gough confirmed that there was nothing to prompt the events in the meal 
room outside of the radio incident; and

(x) Mr Gough confirmed that Ms Francis wasn’t yelling over the radio at the 
forklift operators, more of a stern tone.’

[108] As a result of their inquiries, Ms Green and Mr Wickham made a preliminary finding 

that the applicant had been shouting aggressively at operators over the two-way radio and that 

Mr Nichol had said, ‘Shut up Suzie’. Subsequent to this, the applicant had walked straight up 

to Mr Nichol in the meal room and said ‘Don’t you ever speak to me like that again’. She 

grabbed his throat, while Mr Nichol remained seated. He flicked her hands away, saying 

‘Don’t put your hands on my throat again.’ Ms Green then prepared a letter for Mr Wickham 

on 16 December 2013 requiring the applicant to attend a show cause meeting on 19 December 

2013 (see para [13]). 

[109] Ms Green then prepared a document for Mr Wickham in the lead up to the meeting on 

19 December 2013 with a list of questions for the applicant. The meeting was conducted with 

the applicant (who had provided a written response to the allegations), herself, Mr Wickham 

and Mr Outram. Mr Wickham made notes throughout this meeting. Mr Outram had raised 

concerns in relation to the length of time the process was taking. However, Ms Green had 

emphasised the need for due diligence. During a short break, Mr Wickham and Ms Green read 

the applicant’s written response and then told her that she would be called the following day 

to organise a further meeting. Ms Green emphasised that no findings had been made at this 

point. The meeting was subsequently arranged for 9 January 2014.

[110] The same persons attended the meeting on 9 January 2014 and Mr Wickham again 

made notes. Ms Green explained that the meeting was held at the Newcastle Stevedores 

offices as Patrick’s Newcastle offices were being painted. The only other available venue 

would have been the meal room and it was thought that this venue would be inappropriate. At 

the meeting, the applicant claimed she had not used abusive or foul language over the two-








[2014] FWC 7775

30

way radio and that there had been no lift in progress when she had been told to ‘shut up’. She 

further claimed that she had been seated in the meal room before approaching Mr Nichol. She 

had said, ‘By the way don’t you ever talk to me like that again’. Mr Nichol had responded by 

saying, ‘What are you going to do about it?’ When she ‘encroached in Mr Nichol’s space’, he 

had punched her.

[111] Ms Green described the applicant suddenly using herself as a ‘puppet’, in that she had 

sought to move Ms Green’s arms to establish what had occurred between herself and Mr 

Nichol. Ms Green said she was surprised by this and felt that it was inappropriate. When the 

applicant had started to cry, Ms Green had offered her a break. However, she and Mr Outram 

insisted they continue. The applicant had also complained as to shift allocations and her 

perceptions that she was being treated unfavourably. At the conclusion of the meeting, the 

applicant was told that she would be informed of a result after consultation with more senior 

people in Patrick had occurred. The applicant’s suspension on pay was maintained. 

[112] On 10 January 2014, Ms Green sent an email to Mr Sommer setting out the findings of 

herself and Mr Wickham as follows:

‘Incident
 In the early hours of November 27, approximately 3am, Susan Francis was heard to 

be communicating over the radios in a manner which has been described as abusive 
and inappropriate

 This prompted a response from Paul Nichol’s of ‘shut’ up. As Susan was not aware 
of who had made the comment, she approached who she believed to have made the 
remark with words to the effect of ‘don’t you ever talk to me like that again’

 At this point, Susan was advised of who had actually made the comment and nothing 
more was said

 At approximately 5am, in the smoko room, Susan confronted Paul Nichol’s about his 
comment. There are a number of statements that confirm Susan walked/stormed into 
the room and directly up to Paul. The version of events that has been provided by 
Susan in respect to her actions at this point have altered three times

 Once Susan reached Paul, she grabbed him by his throat while continuing to yell 
words to the effect ‘don’t you ever talk to me like that again’ and ‘don’t put your 
hands on my throat again’. These statements have been confirmed by a number of 
other employees

 Susan states that Paul retaliated by punching her on the chin which ricocheted, 
hitting her shoulder. There are no statements confirming such action, rather a gesture 
to flick/push away in response to Susan’s actions

Other considerations
 It was evident in the show cause meeting that Susan has a lack of trust and respect 

for the management team, creating a hostile environment for her to return too [sic]








[2014] FWC 7775

31

 Susan has been employed by us for approximately 12 months
 Bullying and Harassment training was completed by both Susan and Paul in 

September, 2013
 At no point through this process has Susan offered to apologise for any of her 

behaviour and the implications that has had [sic] on this situation
 It was also confirmed that Susan was in a foul mood prior to the commencement of 

this shift due to her belief that there was an inequity occurring with shift allocation

Findings of the investigation
 Through the investigation, the allegations that had been put forward by Paul Nichol 

have all been validated by numerous individuals
 In the show cause meeting that was held on Thursday 9 January, 2014, Susan again 

put forward a varied version of events from the morning in question

Recommended outcome
Termination of employment

Discussions have been held with Eliza and Scott and they are supportive of the process 
which has been followed and the recommendation above. Could you please review the 
above with Philip and provide your approval to proceed down this path.’

[113] Mr Sommer subsequently sent Ms Green an email confirming that he had discussed 

the matter with Mr Philip Tonks, Director. They both had agreed with the recommendation to 

terminate the applicant’s employment. The applicant was informed of this at a meeting on 14 

January 2014 and handed a letter (see para [3]). 

[114] Ms Green referred to the applicant’s statement and denied having met with Ms 

Michelle Myers in relation to this matter. Nor could she remember Mr K Roach attending a 

meeting with herself and the applicant. The reason that Mr Nichol had not been stood down 

was that it had been determined that he had not engaged in misconduct requiring that he be 

stood down. 

[115] Ms Green highlighted the ‘admission’ by the applicant that she had assaulted Mr 

Nichol, a loss of trust and confidence between the parties, the non compliance with Patrick’s 

policies and Patrick’s health and safety obligations as reasons why the applicant should not be 

reinstated. 

[116] In further oral evidence, Ms Green was shown an allocation work sheet. She explained 

that it set out that if the bulk of a shift was in one day, it would be listed on that day, even if 

that was not the day the shift actually finished.








[2014] FWC 7775

32

[117] In cross examination, Ms Green agreed that her lack of direct involvement in the 

meetings of 28 and 29 November 2013 meant that she relied on Mr Wickham’s notes and her 

discussions with him in taking those meetings into account. Ms Green agreed that Mr 

Sommer was not directly involved in the investigation and she had provided information to 

him by way of the email on 10 January 2014 (see para [112]). She understood he would be 

relying on this in making his decision.

[118] Ms Green could not recall as to whether the text of Mr Nichol’s complaint had been 

put to Mr Gough in the interview with him on 9 January 2014. She now accepted that her 

statement in the email that the applicant had grabbed Mr Nichol by the throat while shouting 

‘was confirmed by a number of employees’ was not correct in that it was not sufficiently 

specific. However, she insisted that her statement that ‘the allegations that had been put 

forward by Paul Nichol have all been validated by numerous individuals’ was correct. She 

now accepted that Mr Nichol’s statement that the applicant had been ‘shouting insults’ or 

called anyone an ‘imbecile’ over the two-way radio was not corroborated by anyone. She 

could not recall specifically asking Mr Gorlicki questions on these points.

[119] Ms Green initially believed that Mr Ferguson’s statement at the meeting with Mr 

Wickham that the applicant had given Mr Gorlecki, ‘a bit of a spray’ was corroborative of Mr 

Nichol’s statement that the applicant had shouted aggressively over the two-way radio over a 

number of minutes. ‘What are you doing? Come and give us a hand’ could be said in an 

aggressive tone, but could not be said to be corroborative of shouting aggressively over the 

radio over a number of minutes. She now conceded that Mr Nichol’s allegations that the 

applicant had been aggressively shouting insults over the two-way radio was not corroborated. 

In fact, it could be said that Mr Ferguson’s view generally corroborated the applicant’s 

evidence. Mr Nichol had never been disciplined for saying ‘Shut up, Suzie’ over the two-way 

radio.

[120] Ms Green initially asserted that Mr Nichol’s allegation that the applicant had 

‘stormed’ into the meal room while shouting and then walked up to him was corroborated by 

Mr O’Connell. On review, she accepted that Mr O’Connell’s characterisation of them 

‘clowning around’ was not corroborative of Mr Nichol’s allegation at all. None of her notes 

(other than those arising out of the interview with Mr Nichol) referred to the applicant 








[2014] FWC 7775

33

threatening to punch Mr Nichol in the head. She now conceded that she would probably have 

made a note if any of the interviewees had made reference to this observation. In fact, the size 

of the room meant that if the applicant had shouted, everyone would have heard her and this 

was contrary to what they had said in their interviews.

[121] Ms Green maintained, however, that Mr O’Connell’s statement corroborated Mr 

Nichol’s view that the applicant had walked directly up to him, though she accepted that she 

would have come through a door to which Mr O’Connell had his back. In fact, the note she 

had made during the 9 December 2013 interview with Mr O’Connell quoting the applicant

saying, ‘Nicko, don’t ever talk to me over the radio like that again’ was corroborative of the 

applicant’s evidence. On reflection, Mr O’Connell’s responses in the interviews were 

corroborative of significant parts of the applicant’s account.

[122] Ms Green was taken to the notes of interviews with Mr McIntyre and accepted that his 

references to the applicant ‘cuddling’ Mr Nichol or her having two hands around his throat 

were not corroborative of Mr Nichol’s allegation that the applicant had had one hand around 

his throat with another held up as if to strike him. There was no other account to corroborate 

this. Nor was Mr Nichol’s account of not having touched the applicant consistent with Mr 

McIntyre’s recall that he had ‘flicked’ the applicant’s hands away. In any event, Mr McIntyre 

had said that the applicant had not ‘stormed up’ to Mr Nichol. Ms Green now accepted that 

Mr McIntyre’s interviews were not corroborative of Mr Nichol’s allegations.

[123] Ms Green explained her view that the applicant had changed her version of her events 

a number of times. She and Mr Wickham had noted inconsistencies as to whether Mr Nichol 

had said ‘Shut up’ or ‘Shut the fuck up’. At one time she said she had asked Mr Gorlicki to 

come into the warehouse to assist, at another she claimed she had said ‘Are you coming in 

here or what, Gorlicki’. Ms Green identified another inconsistency in that the applicant said 

she had spoken to other people in the meal room before approaching Mr Nichol. Ms Green 

also considered the applicant’s differing account of being punched in the neck or being 

punched in the chin and ricocheting into her throat, as another inconsistency. She now 

accepted that these inconsistencies did not strike at the core of the applicant’s account and her 

characterisation of them in the letter to Mr Sommers was misleading. She maintained that the 

applicant statement that she had ‘lightly touched’ Mr Nichol on the chest was an admission of 

assault.








[2014] FWC 7775

34

[124] In response to a question from me, Ms Green confirmed that she had not previously

been involved in an investigation involving allegations of assault where an employee had 

been dismissed, although she had been involved in other investigations which had led to the 

dismissal of an employee.

[125] In re-examination, Ms Green said that she or Mr Wickham would have read the notes 

from Mr McIntyre’s initial interview to him in the subsequent interview. 

Mr Scott Young

[126] In written evidence, Mr Young deposed that he had been in the meal room during a 

break in the shift on 27 November 2013 at approximately 5:00am. He had seen the applicant 

and Mr Nichol. The applicant was standing and Mr Nichol remained seated. He had heard 

heated words, but could not recall them exactly. However, he recalled that Mr Nichol had said 

‘Don’t put your fucking hands on my throat again’. The applicant then walked out of the 

room.

[127] Mr Young said that he was interviewed by Mr Wickham and Mr Ryan on 29 

November 2013, although he did not have a support person. He attended a further interview 

with Mr Wickham and Ms Green on 9 December 2013. He had signed the notes of both 

meetings.

[128] In cross examination, Mr Young confirmed that he had not had a two-way radio on 

the ‘dog watch’ shift on 26-27 November 2013.

[129] Mr Young was referred to the notes made of his interview on 9 December 2013. He 

agreed that he had been surprised at the confrontation between the applicant and Mr Nichol as 

they generally ‘got on’. He explained that he had heard Mr Nichol say ‘Don’t put your fucking 

hands around my throat’ and then looked up and saw the applicant walking away. It was 

possible that the applicant had sat down again rather than left the room. That was all he had 

heard. Mr Young said that he was about 1 ½ to 2 metres away from Mr Nichol at the time. 








[2014] FWC 7775

35

[130] Mr Young agreed that if someone had been walking down the aisle of the small meal 

room, ‘shouting at the top of their voice’ they would have been easily heard. He was quite 

sure that the confrontation had occurred during the second smoko break. 

Mr Justin Ferguson

[131] Mr Ferguson gave written evidence that during the night shift on 27 November 2013, 

he had heard the following exchange over the radio:

Applicant: David, what are you doing? Get in here and give us a hand.

Mr Nichol: Shut up Suzie.

Applicant: Don’t tell me to shut up, David.

Mr Gorlicki: It wasn’t me who said it.

He stressed that Mr Nichol had not said, ‘Shut the fuck up, Suzie’.

[132] Mr Ferguson was interviewed by Mr Wickham and Mr Ryan on 28 November 2013, 

although he did not have a support person. He attended a further interview with Mr Wickham 

and Ms Green on 9 December 2013. He had signed the notes of both meetings.

[133] In cross examination, Mr Ferguson was referred to the notes made of his interviews 

on 28 November and 9 December 2013. He clarified that when he said that the applicant had 

given Mr Gorlicki a ‘bit of a spray’ he was referring to her saying, ‘David, what are you 

doing? Get in here and give us a hand.’ The applicant had not been shouting or behaving 

aggressively. It had not gone on for ‘minutes’. He now could not recall whether the latter 

exchange between the applicant and Mr Gorlicki had been in person or over the two-way 

radio, although he agreed his notes of 9 December 2013 appeared to reflect that Mr Gorlicki 

had brought his forklift around to the shed. He could not recall whether the exchange had 

occurred before the first or second smoko breaks. Mr Ferguson could not recall having had 

discussions with other crew during or after the relevant shift about the incident between Mr 

Nichol and the applicant in the meal room. He had not wanted to get involved. 

Mr Bruce McIntyre








[2014] FWC 7775

36

[134] Mr McIntyre’s written evidence was that he had worked a 7:00pm-7:00am shift on 27 

November 2013 and that he did not know any of the people he was working with, other than 

Mr Jake Roach. 

[135] Mr McIntyre stated that at approximately 5:00am, he had been in the meal room, 

sitting adjacent to the door. He had seen Mr Nichol seated and the applicant standing either 

beside or behind him. He had initially thought she was ‘hugging’ Mr Nichol, but then realised 

she had two hands around his throat. Mr Nichol had, in a non-aggressive fashion, brought up 

either one or both of his hands to take the applicant’s hands off his throat. He had said 

something like, ‘Don’t do that again’. The applicant then moved away. 

[136] Mr McIntyre was interviewed by Mr Wickham and Mr Roach on 29 November 2013. 

He attended a further interview with Mr Wickham and Ms Green on 9 December 2013. He 

did not have a support person at the meeting of 29 November 2013, but Mr Outram had 

attended with him on 9 December 2013. He had signed a copy of the notes of 29 November 

2013.

[137] In cross examination, Mr McIntyre confirmed that the shift of 27 November 2013 

was only his second shift with Patrick and he had no idea of the relationships between people 

on that shift. He had worked with Mr Nichol for the whole of that shift. He could not recall if 

he had worked the following night or if he had worked with Mr Nichol that night. He 

probably would not have communicated much with Mr Nichol because he generally kept to 

himself and he had not been there long. He could not say whether there was much discussion 

by the crew about the altercation between the applicant and Mr Nichol and he had not 

discussed the incident with anyone prior to his interview on 29 November 2013.

[138] Mr McIntyre was referred to the notes made of his interviews with Patrick and 

explained that he had thought the applicant was giving Mr Nichol a ‘cuddle’. However, he 

then saw her hands move to his throat. It was possible that her hands were at his collar. He 

had definitely not seen her with one hand on Mr Nichol’s throat and another raised to strike. 

Mr Nichol had said, ‘Don’t do that’ in a raised voice. These were the first words he heard. Mr 

Nichol had ‘flicked’ up his hands to remove the applicant’s hold on him, but it was possible 

that he threw an arm out in front. In any event, Mr Nichol had made contact with the 








[2014] FWC 7775

37

applicant, although not aggressively. Mr McIntyre was unclear as to whether the applicant 

was behind or to the side of Mr Nichol. 

[139] Mr McIntyre stated that he had not heard the applicant shout a threat at Mr Nichol. He 

conceded it would have been obvious if this had occurred as it was a small room. Nor had he 

witnessed the applicant ‘storm up’ to Mr Nichol. She had walked up to him. 

[140] Mr McIntyre was unclear as to whether the confrontation had occurred during the first 

or second smoko break. He accepted that the time was put to him by Patrick and he had 

agreed to it. He thought it was probably 5:00am, but it could have been on either break.

[141] In answer to a question from me, Mr McIntyre agreed that this was his first job on the 

waterfront.

[142] In re-examination, Mr McIntyre clarified that he had seen a ‘cuddle’ and had then 

observed Mr Nichol’s hands ‘flick up’.

Mr Andrew Wickham

[143] Mr Wickham has been Newcastle Site Manager for Patrick since October 2013. In 

written evidence, he said that Mr Scott Carter, the Union’s Site Delegate attended his office 

with Mr Nichol at 7:15am on 28 November 2013 to advise that there had been a physical 

incident the previous morning. He told Mr Nichol to provide a written incident report and that 

he would return to the site at 7:00pm to conduct interviews. The applicant would be 

suspended on pay. He left a message for Mr Outram at approximately 7:30am and then 

contacted Ms Green to ask her to attend the interviews that night. Mr Wickham referred to 

diary notes supporting these flow of events.

[144] Mr Wickham stated that the written incident report from Mr Nichol was given to him 

at approximately 7:30pm. It set out that the applicant had been shouting aggressively at a 

forklift driver, that she had ‘stormed into’ the meal room at 5:00am shouting, ‘If you tell me to 

shut up again I will punch you in the head’ and, still shouting, she had grabbed Mr Nichol by 

the throat. 








[2014] FWC 7775

38

[145] Mr Wickham explained that the ‘first phase’ of the investigation was mostly 

conducted by him and that the ‘second phase’ was conducted by both him and Ms Green. The 

first interview with the applicant had taken place at 7:30pm on 28 November 2013. Mr 

Michael Ryan attended in his capacity as Patrick’s Continuous Improvement Manager and Mr 

Gough attended as the applicant’s support person. When asked at the commencement of the 

interview, the applicant said she did not want the Union involved. She stated the following:

‘(a) at around 3am, she heard a person say over the radio “Shut up Suze”. She had 
challenged the forklift driver (Mr David Gorlicki) about the comment and was 
told it was made by Mr Nichol;

(b) at around 5am, she was sitting in the lunchroom and turned around to Mr 
Nichol and said to him “Don’t you ever talk to me that [sic] again I will smack 
you”;

(c) Mr Nichol then said “go on then”;

(d) she then walked over the Mr Nichol [sic] and touched him under the chin;

(e) Mr Nichol then punched her in the neck’

[146] Mr Wickham said that the applicant then listed a number of people who had witnessed 

the incidents. The applicant had put to him that the reason the allegations were being made 

was because of her own complaint in relation to rosters, but he had not been aware of any 

such complaint. He read his notes aloud to the applicant and she and Mr Gough signed the 

document, but did not ask for a copy. He noted that the applicant had asked him to add the 

words ‘and will smack you’. He informed the applicant that she was suspended on pay. Mr 

Wickham denied that the applicant had used the word ‘fuck’ as he would have made a note of 

this. The applicant had not sought to defend herself. He denied that she was told that Mr 

Nichol had been stood down. 

[147] Mr Wickham described his interviews with Mr Mackerras, Mr Young, Mr Gorlicki, 

Mr Ferguson, Mr J Roach and Mr O’Connell on 28 November 2013. Mr McIntyre was 

interviewed on 29 November 2013 and Mr Nichol was again interviewed on this day with Mr 

Carter and Mr K Roach acting as his representatives. Mr Nichol denied that he had punched 

the applicant in the throat and repeated his allegation that the applicant had ‘stormed straight 

in’.








[2014] FWC 7775

39

[148] Mr Wickham recalled having spoken to the applicant again by telephone on 29 

November 2013 with Mr K Roach sitting in on the conference call. The applicant was invited 

to a further interview on 2 December 2013, although this meeting was subsequently 

conducted on 4 December 2013, with Mr Outram, Mr K Roach and Ms Michelle Myers of the 

Union in attendance. At this meeting, it was determined that Mr Cox and Mr O’Connell 

should also be interviewed. When Mr Outram expressed his dissatisfaction at the late 

involvement of the Union, Mr Wickham had replied that the applicant had initially indicated 

that she did not want the Union involved. The applicant and Mr Outram were shown copies of 

records setting out that the applicant had attended harassment and bullying training in 

September 2013. The applicant had provided a diagram setting out where people had been 

seated in the meal room on the night of the incident. The applicant was informed that her 

suspension on pay would continue.

[149] Mr Wickham conducted an interview with Mr Cox later that day. He acknowledged 

that Mr Cox had supported the allegation that Mr Nichol had punched the applicant, but noted 

that he said that he did not think that the punch was ‘going to connect’. He did not investigate 

this matter any further because Mr Nichol’s allegations were corroborated by other witnesses.

[150] Mr Wickham and Ms Green had conducted further interviews on 9 and 10 December. 

This involved him reading out a copy of the statement previously given by each person and 

each person confirming the correctness of that statement. Ms Green took notes throughout 

these interviews, read her notes aloud to each interviewee and asked them to sign her notes. 

All of them did so. 

[151] Mr Wickham set out some additional comments made by interviewees on 9-10 

December 2013. Mr McIntyre now said that Mr Nichol had ‘non-aggressively’ flicked the 

applicant’s hands away from his throat and that she was standing beside or behind Mr Nichol. 

Mr Young confirmed that the applicant was not seated. He had heard Mr Nichol say, ‘Don’t 

put your hands around my throat’ and he had looked up and the applicant had been walking 

away. Mr Cox confirmed his statement that he had seen Mr Nichol throw a punch, but he 

thought that they were ‘playing around’. Mr Mackerras revised his statement to say that he 

could not recall anyone walking into the room screaming. Mr Gorlicki had said that he could 

not recall exactly what Mr Nichol had said over the two-way radio, except that it was 

‘cheeky’. He couldn’t recall whether the applicant had been in the meal room. Mr O’Connell 








[2014] FWC 7775

40

recalled that the applicant had walked through the door saying, ‘Niko don’t ever talk to me 

over the radio like that again’. Mr J Roach and Mr Gorlicki were also reinterviewed. 

[152] Mr Nichol was interviewed on 10 December 2013. Mr Nichol explained that the 

applicant had called someone an ‘imbecile’ over the two-way radio over a period of time. As 

he had needed the two-way radio to direct the crane operator, he had told the applicant to 

‘shut up’. He had no further interaction with her until she stormed into the meal room saying, 

‘If you ever tell me to shut up again, I will punch you in the head’. His hands were raised in 

response to her aggression. He was sitting down at the time. 

[153] Mr Gough had confirmed that he had heard someone say, ‘Shut the fuck off [sic] Suzie’ 

over the two-way radio at approximately 3:00am. He had heard Mr Nichol say ‘Don’t touch 

me’ when he had been in the meal room but thought Mr Nichol was joking. He could not 

recall anything else. He could not recall who had been sitting or standing in the meal room. 

[154] Mr Wickham had sent a letter to the applicant on 16 December 2013 (see para [13]) 

directing her to attend a meeting on 19 December 2013. At that meeting, the applicant had 

provided a written response. He had told her that the response would need to be considered. 

Mr Outram complained as to the length of time the investigation was taking. After a short 

break, the applicant was told that she would be advised the following day as to when the next 

meeting would be held and that it was unlikely to be before 6 January 2014. It was 

subsequently arranged for 9 January 2014.

[155] On 9 January 2014, Mr Wickham and Ms Green had asked questions according to a 

document prepared by Ms Green and others. The applicant stated that she had not used abuse 

or foul language over the two-way radio and that there had been no crane lift at the time that 

she had been told to ‘shut up’. She had been seated in the meal room, had got up to go to the 

oven and had said, ‘By the way don’t you ever talk to me like that again’ to Mr Nichol, who 

had responded, ‘What are you going to do about it?’ She moved towards Mr Nichol and Mr 

Nichol punched her. She attempted to use Ms Green as a ‘puppet’ to demonstrate how she had 

touched Ms Green, who appeared shocked at this approach. She again raised the issue of 

unfair rosters as underlying the dispute. The applicant was then told that she would be 

informed of Patrick’s decision at a later date and that she would remain suspended on pay. 








[2014] FWC 7775

41

[156] On 13 January 2014, Mr Wickham had another meeting with the applicant, Mr Outram 

and Ms Green. He read out the letter which confirmed that she was to be terminated effective 

14 January 2014 (see para [3]).

[157] Mr Wickham believed that reinstatement would be inappropriate as the applicant had 

described the Stevedoring Manager (Mr K Roach) and the Stevedore responsible for rostering 

(Mr Grech) as untrustworthy. Her claims about delegates conspiring against her were 

unfounded. Additionally, her assault of Mr Nichol would make the workplace difficult, if she 

returned.

[158] In cross-examination, Mr Wickham did not accept that it was unusual for a wharfie to 

make a complaint to management in the company of a Union official. 

[159] Mr Wickham could not recall the exact words he used when offering the applicant the 

opportunity to be represented by the Union at the meeting of 28 November 2013. He thought 

it would have been in terms similar to ‘Do you want Mr Outram as your representative’. 

[160] Mr Wickham agreed that his notes of his interviews were not a transcript. He had 

recorded the salient points. Where he used inverted commas, this was likely to have been a 

quote. He had not raised the applicant’s allegation of Mr Nichol punching the applicant in any 

of the interviews he had conducted with the other witnesses on 28 November 2013, but agreed 

that Mr McIntyre had alleged some physical contact. He had asked, in general terms, what 

had occurred. He admitted that she had alleged a history of harassment from Mr Nichol. 

However, she had not previously reported it. 

[161] Mr Wickham was familiar with the dimensions of the meal room and acknowledged 

that it would have been difficult for people there not to have heard someone shouting at the 

top of their voice when they entered the room. 

[162] Mr Wickham accepted that the interviews of Mr Gorlicki and Mr Mackerras were not 

actually corroborative of either the applicant’s or Mr Nichol’s version of events. He was not 

sure whether Mr Gorlicki’s reference to the applicant being ‘heated’ referred to the physical 

confrontation with Mr Nichol or her initial approach to Mr Gorlicki in the shed. Mr Ferguson 

had referred to the applicant giving Mr Gorlicki ‘a bit of a spray’, rather than ‘shouting very 








[2014] FWC 7775

42

aggressively’ over a number of minutes. It was possible he had observed the exchange 

between Mr Gorlicki and the applicant in the shed. This was corroborative of the applicant, 

rather than Mr Nichol.

[163] Mr Wickham conceded that Mr O’Connell had referred to an exchange between the 

applicant and Mr Nichol, but he had not referred to the applicant ‘storming in shouting at the 

top of her lungs.’ This was inconsistent with Mr Nichol’s version of events and, to the extent 

that it provided any information, was consistent with the applicant’s version of events. He 

now accepted that none of the persons he interviewed on 28 November 2013 corroborated Mr 

Nichol’s version of events and, in separate ways, corroborated the applicant’s account.

[164] Mr Wickham could not say why Mr Nichol had not been suspended after the 

applicant’s allegations of assault, although he did not accept a proposition that he had 

assumed Mr Nichol’s account was true at this point. He now accepted that he had not sought 

to test the allegations made by the applicant in these interviews. Nor had he directly asked Mr 

Gorlicki if the applicant had ‘shouted insults’ at him.

[165] Mr Wickham was referred to his notes of Mr McIntyre’s interview on 29 November 

2013. He accepted that Mr McIntyre’s reference to the applicant ‘cuddling’ Mr Nichol was 

not consistent with Mr Nichol’s account, except to the point of physical contact, which had 

never been denied by the applicant. The allegation as to the applicant having two hands 

around Mr Nichol’s throat came one and a half shifts later and was not consistent with Mr 

Nichol’s account that the applicant had one hand on his throat and another raised as if to strike 

him. It was possible that if her hand was near Mr Nichol’s collar, it might have appeared that 

she had her hands around his throat. This could be seen as corroborative of the account of the 

applicant, rather than that of Mr Nichol. Nor was Mr McIntyre’s account of Mr Nichol 

‘flicking’ or ‘pushing’ the applicant in defence, consistent with Mr Nichol’s statement that 

had raised his hands in response. Mr Cox’s account that he had seen a punch thrown 

corroborated the applicant’s account of a punch towards her. 

[166] In answer to a question from me, Mr Wickham agreed that after these interviews, he 

did not feel he needed to investigate the matter any further. He had formed the view that Mr 

Nichol’s version was the correct one. However, Patrick had continued with the investigation 

and another period of review, after Ms Green and HR became involved.








[2014] FWC 7775

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[167] Mr Wickham acknowledged that after the interviews of 28 November 2013 had been 

completed, he had called the applicant to tell her that she was invited to come back to work 

the following shift as there was no corroboration of Mr Nichol’s version of the events.

[168] In re-examination, Mr Wickham clarified that his role in the decision to terminate the 

applicant was by way of assisting Ms Green with the final interviews. The decision itself was 

made by a senior manager. 

[169] Mr Wickham said that in each of the interviews, he had brought the relevant witness 

in, asked them if they wanted representation, read out the complaint of Mr Nichol and then 

worked through both of the incidents.

Mr Paul Nichol

[170] Mr Nichol has been employed by Patrick in 2004 and by Patrick in Newcastle since 

2012. In written evidence, Mr Nichol said that he had worked on the 7:00pm-7:00am shift on 

26-27 November 2013 as Hatch Foreman. He was in the hold of the ship directing the Crane 

Operator in relation to lifts, for which he had a two-way radio attached to his chest. 

[171] Mr Nichol deposed that at 3:00am, he heard the applicant using derogatory language 

to a forklift driver over the two-way radio, including calling him an ‘imbecile’. Although he 

was not aware of who she was talking to, he said, ‘Shut up Suzie’ over the two-way radio. 

There was no response. Mr Nichol denied having said, ‘Shut the fuck up Suzie’. Mr Nichol 

claimed that he had told the applicant to ‘shut up’ partly because of the inappropriate nature 

of her comments and partly because her talking over the two-way radio was a distraction from 

his work ensuring the safe and effective lift out of the ship.

[172] Mr Nichol stated that he had not had any further contact with the applicant on that 

shift until approximately 5:00am in the meal room. He was sitting and eating in his usual spot 

when the applicant entered the room and shouted from the doorway, ‘If you tell me to shut up 

again I will punch you in the head.’ She then moved towards him, grabbed him by the throat 

with one hand and had the other hand up ready to strike him. She was still yelling, but he 

could not remember what she was yelling. He raised his own hand, but did not touch her. 








[2014] FWC 7775

44

After she let go, he said ‘Never grab me again’ two or three times. He denied having said 

‘Come on, come on then’ or that he had punched the applicant.

[173] Mr Nichol said that he was particularly upset by this incident and he had expected her 

to apologise to him at the next shift. However she did not say anything to him. He denied 

having spoken to her since the confrontation in the meal room. He made a written statement to 

Mr Wickham at the end of the shift (see para [20]). He was subsequently interviewed by Mr 

Wickham and Mr Ryan on 29 November 2013 and then again by Ms Green and Mr Wickham 

on 9 December 2013. Mr Carter attended both meetings with him.

[174] Mr Nichol said he could remember having been out with the applicant, but he denied 

that she had paid for the cruise tickets for either him or his girlfriend. Nor could he recall ever 

hitting her on the top of her helmet. He accepted the applicant’s evidence that he had referred 

to her as a ‘ranga’ and made comments about whether ‘the carpet matched the curtains’, but 

said that there was a fair amount of banter on the wharf. He also accepted that he had had an 

aggressive encounter with Mr O’Connell over the two-way radio when he had failed to follow 

instructions. This had resulted in goods being dragged across other goods in the hold. Even 

so, they had shook hands at the end of the shift.

[175] In cross examination, Mr Nichol said that he had worked on the waterfront since 

2000 and he had been a member of the Union from that time. 

[176] In relation to the incident where he had referred to the applicant as a ‘ranga’, Mr 

Nichol explained that it was in the nature of the waterfront workforce that they made a lot of 

jokes, teased each other and called each other names. He stressed that this conversation had 

started with the applicant having said some inappropriate sexual comments about his 

relationship with his girlfriend. He denied that this exchange occurred over a two-way radio 

as he was working on the wharf and did not have a two-way radio that day. He could not 

remember whether the jokes about the colour of the applicant’s pubic hair went on for a 

number of weeks.

[177] Mr Nichol denied that he and the applicant had been friends. He had attended Mr 

Gough’s birthday because of him, not the applicant. However, they had been friendly until he 

became aware of the applicant’s ‘violent tendencies’.








[2014] FWC 7775

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[178] Mr Nichol agreed that telling someone to ‘Shut the fuck up’ over the two-way radio 

would be inappropriate. However, telling someone to ‘Shut up’ over the radio was appropriate 

when he needed the two-way radio to be clear so that he could do his job safely. He confirmed 

that the applicant’s abuse went on for a few minutes, but he could not remember the exact 

words. It was inappropriate as she was implying Mr Gorlicki was an imbecile. He had not 

referred to his need for the two-way radio to be clear in his original statement, because this 

was a ‘given’ in the workplace. He denied he had said ‘Shut the fuck up’ because he wanted 

Mr Gorlicki to clear the wharf. He did not accept that his evidence on this point was 

exaggerated. He suggested that he was thinking more clearly when he had his second 

interview, as he was not as fatigued.

[179] Mr Nichol acknowledged that he had worked a shift after the one in which the incident 

occurred and before making his complaint. He had not raised his complaint with the Shift 

Delegate (Mr Mackerras) or his Team Leader (Mr Gough) on either of those shifts. He denied 

that the reason for this delay was that had not been going to make a complaint until he had 

heard the applicant had been asking other employees about the incident. He had been hoping 

that the applicant would apologise. Instead, he had gone to Mr Carter, because he had known 

him for 15 years and he was an experienced delegate. He denied he had approached Mr Carter 

because he was someone who was unsympathetic to the applicant. He had known that Mr 

Carter would support him, though he had tried to talk him out of making the complaint. He 

was unclear as to when he had called Mr Outram or how he had got his number. He could 

remember the discussion about 12 hour shifts, but could not remember if it had been on the 

same night. 

[180] Mr Nichol accepted that Mr Mackerras and Mr Cox were the two employees closest to 

him in the meal room at the time of the incident. He had forgotten to identify them when he 

listed the people who could help Mr Wickham with his investigation, because he was upset at 

being grabbed by the throat.

[181] Mr Nichol denied that the applicant had said, ‘Don’t you ever talk to me like that over 

the radio again’. She had screamed at him from the door, ‘If you ever tell me to shut up again, 

I’ll punch you in the head’, before moving towards him. He accepted that everyone in the 

meal room would have heard this, but they might not have wanted to be involved or they 








[2014] FWC 7775

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could have been asleep. He could not remember responding verbally to her. He denied he had 

been ‘baiting’ her. He accepted that he had not referred to her having grabbed him around the 

throat with one hand, with the other hand raised, in his initial complaint, but he had been 

exhausted and upset. He denied having touched the applicant; his hands had come up to his 

shoulders as a reaction, but he was conscious that he did not want to hit a woman or lose his 

job. He then said he had raised only one hand as he may have been eating with his other hand.

[182] In re-examination, Mr Nichol explained that at the time he had told the applicant to 

‘Shut up’, they had been discharging steel coil from the hold, which were heavy, round and 

slippery. He would have been busy, even if there was a delay on the wharf, double checking 

the straps were cut and pulled out. 

[183] Mr Nichol claimed that raising his hand or hands was a normal reaction to having 

someone grab his throat. 

[184] Mr Nichol could not recall having ever spoken to the applicant about her concerns 

with the Consultative Committee, although there had been ‘rumblings’ about the election. For 

his part, he could not see how the election could have been tampered with.

Mr Warwick Sommer

[185] Mr Sommer has been employed by PSL Services Pty Limited, a related entity to 

Patrick, since 30 September 2013. He is responsible for the operation and management of 15 

business units in Patrick’s stevedoring business. 

[186] In written evidence, Mr Sommer explained that he became aware of allegations 

against the applicant after a telephone conversation with Mr Dene Ladmore, Eastern Region 

Manager - Patrick Stevedoring on or about 28 November 2013. Mr Ladmore told him that he 

had directed Mr Wickham to conduct an investigation with Ms Green. He received regular 

updates from them, leading up to an email in which Ms Green made a recommendation to 

terminate the applicant’s employment (see para [112]). 

[187] Mr Sommer stated that he had considered a number of factors before making his 

decision, including recent training on the bullying and harassment policy, the inconsistency of 

the applicant’s statements, his understanding that the applicant was the aggressor, the 








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47

corroboration of allegations against her and lack of corroboration of the claim that the 

applicant had been punched in the throat by Mr Nichol. In determining whether disciplinary 

action short of dismissal was appropriate, he considered the fact that the investigation had 

found strongly in favour of Mr Nichol’s version of events, the serious nature of a physical 

assault at work and the fact that the applicant’s conduct was contrary to the Asciano Code of 

Conduct.

[188] Mr Sommer said that he also had a discussion with Mr Philip Tonks (Divisional 

Director - Patrick Ports & Stevedoring), who agreed that termination of employment was 

appropriate. He advised Ms Green accordingly.

[189] In cross examination, Mr Sommer agreed that he was the ultimate decision maker in 

relation to the applicant’s termination. He had received procedural updates throughout the 

investigative process, but these did not really go to the substance of the investigation. He had 

not reviewed the interview notes and the other materials. He had relied on Ms Green and Mr 

Wickham to make an assessment of the evidence to make recommendations. Ultimately, he 

had relied on the email of Ms Green on 10 January 2014 (see para [112]). Mr Sommer 

clarified that the factors he had considered in relation to his decision were based on the report 

he had received from Ms Green. 

[190] Mr Sommer conceded that if Mr Wickham and Ms Green had subsequently accepted 

that the material on which they had based their respective assessments did not support their 

conclusions, he would have been misled. Mr Sommer had not seen the allegations made by 

Mr Nichol. He had taken the phrase ‘Throughout the investigation the allegations that have 

been put forward by Paul Nichol have all been validated by numerous investigations’ to mean 

that the allegations had been corroborated by a number of people.

[191] In response to questions from me, Mr Sommer said that on the facts before him, he 

had considered disciplinary action short of termination may have been appropriate, but the 

physical and aggressive nature of the conduct alluded to in the email, had meant that it was at 

the serious end of the scale. There was no provision in the respondent’s disciplinary policy to 

accept a submission from an employee directly into account or to have an external 

independent investigator. 








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48

SUBMISSIONS

For the applicant

[192] In written submissions, Mr Howell set out the facts that should be accepted by the 

Commission as follows. The applicant had been working night shift on 27 November 2013 in 

her capacity as a Senior Tally Clerk and had asked Mr Gorlicki to bring his forklift into the 

warehouse. Someone had said over the two-way radio, ‘Why don’t you shut the fuck up, 

Suzie’. The applicant did not respond. The applicant mistakenly raised this with Mr Gorlicki 

when he returned to the shed and he told her that it had been Mr Nichol who had made the 

comment. Subsequently, there was an exchange between the applicant and Mr Nichol during a 

break, during which Mr Nichol assaulted the applicant. The applicant did not assault Mr 

Nichol. The applicant decided not to speak to Mr Nichol about this over the next shift, as she 

thought it had blown over. At 9:30am, after that shift, the applicant was advised she was to be 

stood down and would be required to attend an interview that night. After that meeting, the 

applicant was told that she could return to work. However, this decision was reversed the 

following morning. She attended a further interview and provided Patrick with additional 

information. At another meeting on 16 December 2013, the applicant was provided with a 

letter setting out the allegations that she had assaulted Mr Nichol and that this constituted 

serious misconduct. She provided a written response at a meeting on 19 December 2013 in 

which she denied these allegations. The applicant’s stand down continued and on 14 January 

2014, she was dismissed.

[193] Mr Howell set out the definition of an unfair dismissal under s 385 of the Act and put 

that that the only issue to be determined by the Commission was whether the dismissal was 

‘harsh, unjust or unreasonable’, having regard to the criteria set out in s 387 of the Act. 

[194] Mr Howell said that in determining whether there was a valid reason for dismissal (s 

387(a)), the context in which the behaviour occurred should be considered in a common-sense 

fashion; See: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’); 

IGA Distribution (Vic) Pty Ltd v Cong Nguyen (2011) 212 IR 141; Qantas Airways Ltd v 

Cornwall (1998) 83 IR 102; and Rail Corp New South Wales v Vrettos (2008) 176 IR 129. 

Where it was said that the valid reason was misconduct, the Commission must determine 

whether the misconduct occurred, rather than whether the employer believed, on reasonable 

grounds, that it had occurred; See: King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 (‘King 

v Freshmore’); Edwards v Justice Giudice (1999) 94 FCR 561 (‘Edwards v Giudice’); and B, 








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C, and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191. The onus 

of proving this falls on the employer; See: Culpeper v Intercontinental Ship Management Pty 

Ltd [2004] AIRC 261 (‘Culpeper’) based on the standard of proof set out in Briginshaw v 

Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (‘Briginshaw’). 

[195] Mr Howell explained that the valid reason(s) set out by Patrick as the basis for the 

dismissal of the applicant were that she had communicated inappropriately over the two-way 

radio and that she had physically assaulted Mr Nichol, which contravened the respondent’s 

Bullying and Harassment Policy. The applicant had consistently denied both allegations and 

there was no valid reason for her dismissal.

[196] Mr Howell referred to the notification of the reason for the applicant’s dismissal (s 

387(b)) and the opportunity given to her to respond (s 387(c)). This required the applicant to 

understand what was alleged against her and that she be given a reasonable and genuine 

opportunity to defend herself; See: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 

(‘Crozier v Palazzo’) and Sutcliffe v General Motors-Holden’s Automotive Ltd [1998] FCA 

88. Here, the applicant had been notified of the reasons for her dismissal in a letter on 16 

December 2013 and had provided a response on 19 December 2013. She was subsequently 

dismissed when she was handed a letter on 13 January 2014. While the applicant was notified 

of the allegations and given an opportunity to respond, she was not given a genuine 

opportunity to be heard as to whether a lesser disciplinary sanction would be appropriate. 

[197] Mr Howell noted that the applicant had been offered the opportunity to have a support 

person present at all meetings with Patrick (s 387(d)) and there were no suggestions that the 

applicant had been dismissed for poor performance (s 387(e)). Further, Patrick’s enterprise 

was large and it had extensive access to internal human resources personnel and to internal 

and external legal advice (ss 387(f), (g)).

[198] Mr Howell listed a number of other matters which were relevant as to whether the 

applicant’s dismissal had been ‘unfair, unjust or unreasonable’, including:

 the lack of any adverse disciplinary history and her otherwise good record of 

employment;

 that her approach to Mr Nichol had been in response to inappropriate comments 

directed to her over the two-way radio; and








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50

 that the dismissal resulted in damage to the applicant’s reputation, left her with 

serious financial pressures and had had effects on her mental and emotional 

wellbeing.

[199] Mr Howell emphasised that an employee who had been unfairly dismissed was entitled 

to be reinstated, absent a finding that it would inappropriate to do so (s 390; Regional Express 

Holdings Pty Ltd v Richards (2010) 206 IR 17). The applicant sought reinstatement to her 

former position, continuity of service and back pay.

[200] In oral submissions, Mr Howell submitted that the respondent had not discharged the 

necessary onus of proof to the Briginshaw standard, in the context of serious allegations of 

assault. He noted that the letter of dismissal issued 13 January 2014 (see para [3]) did not 

particularise the conduct that led to dismissal and referred to allegations set out in the show 

cause letter dated 16 December 2013 (see para [4]). If the applicant had engaged in the 

conduct alleged, then it would have been proper for her to have been dismissed. However, the 

‘fundamentally flawed’ nature of the respondent’s investigation which led to the applicant’s 

dismissal, meant that its findings in relation to her use of the two-way radio and an aggressive 

assault by the applicant, could not be sustained.

[201] Mr Howell outlined the process of investigation. It was begun after a complaint by Mr 

Nichol on 28 November 2013 in relation to conduct in the late evening of 26 November or 

early morning of 27 November. Upon receiving this complaint, Mr Wickham interviewed the 

applicant and six other witnesses. However, the allegations of assault and harassment by Mr 

Nichol raised by the applicant in her initial interview, were never investigated. Nor had her 

assertion that the complaint had been made due to her own complaint about rostering being 

unfair.

[202] Mr Howell cast doubt on the usefulness of the evidence of Mr McIntyre. He noted that 

the applicant had been told at the end of 28 November 2013 that she could return to work, but 

this was reversed after the interview of Mr McIntyre, who had spent one shift on 29 

November 2013 working with Mr Nichol. This was the first time that Mr Nichol’s allegation 

that the applicant had touched his throat was corroborated by anyone. In any event, Mr 

Wickham had accepted that Mr McIntyre’s evidence did not corroborate Mr Nichol’s version 

of events.








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[203] Mr Howell referred to what had been termed the ‘second phase’ of the investigation by 

Mr Wickham, during which Ms Green became more heavily involved in a further series of 

interviews. Ms Green prepared the spreadsheet which informed the allegations put in the 

show-cause letter and the email to Mr Sommer on 10 January 2014.

[204] Mr Howell submitted that Mr Nichol’s evidence about the two-way radio incident 

should not be accepted. His story had changed throughout his interviews with the respondent, 

while the applicant’s claim that she had not engaged in abusive or insulting behaviour over 

the two-ways radio had been made consistently throughout. Four other witnesses contradicted 

Mr Nichol entirely and three of those supported the applicant’s claim that Mr Nichol had said, 

‘Shut the fuck up, Suzie’. Mr Gorlicki had expressly disavowed that the applicant had spoken 

to him abusively, aggressively or inappropriately or that she shouted over the two-way radio. 

While Mr Ferguson had been identified by Ms Green as supporting the allegations of Mr 

Nichol in this regard, he had merely said that the applicant had given Mr Gorlicki a ‘spray’. 

He had later confirmed that she was not shouting. Ms Green had subsequently accepted that 

Mr Ferguson had not corroborated Mr Nichol’s version of events and that he had actually 

corroborated the applicant’s version of events. 

[205] While Mr Howell accepted that the evidence of Mr Gorlicki and Mr Mackerras had 

changed between the time they gave interviews to Patrick and giving evidence in the 

Commission, this was credibly explained by the ‘wharfie’s rule’ of not dobbing on your 

mates. Accordingly, Patrick had no basis to conclude that Mr Nichol’s claim as to the 

applicant’s use of the two-way radio was substantiated and the Commission should prefer the 

version of events offered by the applicant. It could not be said to constitute a valid reason for 

dismissal. 

[206] Mr Howell acknowledged that there was confusion as to the time that the 

confrontation in the meal room took place, but this was immaterial. What was relevant was 

what the applicant had done when entering the room, how she had approached Mr Nichol, 

whether she had grabbed him around the throat and whether Mr Nichol had punched her. The 

applicant’s account of this incident in her response to the show-cause letter, was entirely 

consistent with the evidence she had given to the Commission. Mr Nichol’s account that the 

applicant had ‘stormed in’ yelling at him and had then grabbed him by the throat, was simply 








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not believable in light of the lack of corroboration and the small size of the room. Mr 

O’Connell had been identified as having corroborated Mr Nichol’s version of events, but he 

had not been called to give evidence. The Commission should draw a Jones v Dunkel (1959) 

101 CLR 298 (‘Jones v Dunkel’) inference. Ms Green had subsequently accepted that the 

notes of his interviews did not appear to corroborate Mr Nichol’s version of events. 

[207] Mr Howell described the respondent’s evidence that the applicant had touched or 

grabbed Mr Nichol’s throat as inconsistent. The applicant and Mr Nichol describe the 

applicant using one of her hands, Mr Cox and Mr McIntyre describe the use of two hands. In 

any event, the applicant’s account of this action being part of a ‘joke’ was consistent with the 

evidence of Mr Cox and Mr McIntyre. Moreover, Mr Nichol had increased his exaggeration 

of the applicant’s conduct as time went on.

[208] Mr Howell submitted that Mr Nichol’s assertion that he had not touched the applicant 

was not believable. She had approached him in a joking fashion, put her hand on his collar 

and he had overreacted and thrown a punch. The applicant’s evidence had been consistent 

with Mr Cox, although he did not see the punch ‘connect’. Mr McIntyre had described Mr 

Nichol’s action as a ‘flicking’ of his hands, but this corroborated the applicant’s evidence to 

the extent that there had been contact.

[209] Mr Howell put that the evidence was that prior to the incidents on 26-27 November 

2013, the applicant and Mr Nichol had been friends, but he had recently been teasing her 

about the colour of her hair as opposed to the colour of her pubic hair. Mr Nichol had grossly 

exaggerated the applicant’s ‘violent tendencies’ and his own distress, but had not complained 

to the Shift Delegate or his Team Leader. He had not mentioned it to a senior Union official 

he had spoken to after the incident. His assertion that he was waiting for an apology was 

nonsense. Rather, he had been conscious that the applicant had been asking others if they had 

seen the incident. The manner in which the complaint had been made, in the company of Mr 

Carter, should have informed a cautious approach by the respondent, particularly in the 

context of the applicant having voiced complaints about Union delegates. While the 

Commission was not required to make findings on these points, they bore the hallmarks of a 

‘fit-up’. 








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[210] Mr Howell submitted that there was no valid reason for the applicant’s dismissal and 

in the absence of a valid reason, a dismissal would invariably be unfair; See: Parmalat Food 

Products Pty Ltd v Wililo (2011) 207 IR 243. While it should be recognised that 

investigations conducted by employers were not required to be of the forensic standard 

conducted by police officers or lawyers, the respondent had here failed to carry out a proper 

investigation; See: Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A QantasLink [2012] 

FWA 1360; Bluescope Steel Limited v Sirijovski [2014] FWCFB 2593; and Bostik Australia 

Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20; 41 IR 452. The respondent had not objectively 

examined the material before it; rather it had identified parts they felt supported Mr Nichol’s 

claims and ignored the rest. Additionally, they had not investigated the complaints raised by 

the applicant. 

[211] Mr Howell described Ms Green’s recommendation to Mr Sommer as ‘grossly 

misleading’. Her assertion that the allegations were ‘confirmed by a number of other 

employees’ was not true and she had accepted this in cross-examination. Mr Sommer had 

understood from Ms Green’s email that an aggressive physical assault had been found proven 

and that the applicant’s story had changed repeatedly. The people conducting the investigation 

had fundamentally failed in their duty.

[212] Mr Howell confirmed that the applicant sought reinstatement, continuity of service and 

backpay, but noted that she had been engaged in other employment since 2 June 2014 on a 

comparable salary. 

For the respondent

[213] In written submissions, Mr Burke said that the applicant had been dismissed for 

serious misconduct and, accordingly, she was not entitled to notice or payment in lieu of 

notice. The enterprise agreement under which she was covered set out that as a casual 

employee, she was not entitled to notice of the termination of her employment. 

[214] Mr Burke set out the criteria that the Commission must consider, pursuant to s 387 of 

the Act, in determining whether a dismissal is ‘harsh, unjust or unreasonable’ within the 

meaning of s 385 of the Act and to the definitions of serious misconduct found in s 12 of the 

Act and at r 1.07 of the Fair Work Regulations 2009 (the ‘Regulations’). It was acknowledged 








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that even where the reason for dismissal was serious misconduct, in order for it to be ‘valid’, 

it must be ‘sound, defensible or well founded’; See: Selvachandran.

[215] Mr Burke asserted that the respondent’s finding that the applicant had assaulted Mr 

Nichol on 27 November 2013 was a valid reason for dismissal (s 387(a)) and that the 

Commission could be satisfied that the applicant had engaged in serious misconduct within 

the meaning of the Act. Where an employee is dismissed for assault, it will not be viewed as 

‘harsh, unjust or unreasonable’ in the absence of extenuating circumstances; AWU-FIME 

Amalgamated Union v Queensland Alumina ltd (1995) 62 IR 385 and Lambley v DP World 

Sydney Limited [2013] FCA 4.

[216] Mr Burke observed that the applicant had been notified of the reason for her dismissal 

in the correspondence given to her on 13 January 2014 (s 387(b)). She had been given the 

opportunity to respond to allegations raised in relation to her conduct on 28 November 2013, 

4, 16 and 19 December 2013 and on 9 January 2014 (s 387(c)). The applicant had attended a 

meeting on 28 November 2013 with Mr Gough as her support person and with Mr Outram as 

her support person on 4 December 2013 (s 387(d)). Allegations of unsatisfactory performance 

were not relevant to the applicant’s dismissal (s 387(e)). 

[217] Mr Burke acknowledged that the respondent was part of Asciano Ltd, which employs 

about 10,000 people across Australia (s 387(g)). Ms Green, a dedicated human resources 

management specialist, had participated in the investigation leading to the termination (s 

387(g)). Mr Burke listed other relevant matters to a determination as to whether the 

applicant’s dismissal had been ‘harsh, unjust or unreasonable’ (s 387(h)), in particular, the 

significant factual dispute between the parties as to what had occurred over the two-way radio 

and the subsequent incident in the meal room. Where the applicant’s evidence conflicted with 

that of Mr Nichol, Mr Nichol’s should be preferred. 

[218] In particular, Mr Burke submitted that Mr Nichol had said ‘Shut up, Suzie’ rather than 

‘Shut the fuck up, Suzie’ over the two-way radio. This was supported by the witness evidence 

that suggested that this comment was made at 3:00am, rather than 11:00pm; the fact that Mr 

Gough and the applicant had signed notes setting out that this comment was correct and the 

corroboration of Mr Ferguson. Mr Gorlicki claimed that the phrase was, ‘Shut the fuck up 

Suzie and do your job’, but had initially claimed not to have seen or heard anything. Mr 








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Mackerras did not remember it being said until preparing his evidence for this proceeding 

with the applicant’s Counsel. Mr Burke claimed that Mr Nichol had been consistent in his 

evidence as to what he had said over the radio, while the applicant had not been consistent as 

to what she had said. In addition, there was inconsistent evidence from the applicant’s 

witnesses as to how the applicant had approached Mr Gorlicki.

[219] Mr Burke submitted that the evidence demonstrated that at 5:00am, the applicant had 

entered the meal room, walked straight up to Mr Nichol and said, ‘If you tell me to shut up 

again, I will punch you in the head’. She placed one hand on his throat, with the other cocked 

and ready to strike him. Mr Nichol remained seated. Most witnesses had agreed that the 

incident had occurred at 5:00am and the Commission should give little weight to the evidence 

of Mr Gough and the applicant who both thought it occurred at other times. Mr Burke listed 

what were said to be inconsistencies in the applicant’s version of events over time and noted 

that at the point Mr Nichol had made his complaint, he was fatigued after having worked three 

twelve-hour shifts.

[220] Mr Burke noted that the applicant had said that she had been shocked at being punched 

by Mr Nichol. However, she had not reported the incident to anyone in management a Team 

Leader, or even Mr Gough. Even on the applicant’s own evidence, her conduct and comments 

(which she characterised as ‘banter’) constituted a breach of the respondent’s Bullying and 

Harassment Policy, in which she had been trained as to her conduct and reporting obligations. 

This was a further basis for a loss of trust and confidence in the applicant by the respondent.

[221] Mr Burke put that witnesses who said that they had changed their version of events 

due to their initial adherence to the wharfies’ ‘code of silence’ should have little weight 

attributed to their evidence. The applicant had also used this excuse for not making a 

complaint when she claimed she had been punched by Mr Nichol. Mr Burke compared and 

contrasted the evidence of the applicant’s witnesses with that of Mr Nichol. Where the 

evidence of Mr Mackerras and Mr Gorlicki conflicted with Mr Nichol, Mr Nichol’s evidence 

should be preferred as the others had changed their versions of events. Mr Gough was not 

capable of giving objective evidence due to his relationship with the applicant. Mr Cox’s 

evidence was not properly corroborative of the applicant’s account of the incident in the meal 

room. 








[2014] FWC 7775

56

[222] While Mr Burke maintained that the applicant’s dismissal was fair, he submitted that it 

would not be appropriate to reinstate the applicant as Patrick had lost trust and confidence in 

her; See: Perkins v Grace Worldwide (Aust) Pty Ltd (1992) 72 IR 186; Australian Meat 

Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; and Nguyen v IGA Distribution (Vic) Pty ltd

[2011] FWA 3354. He suggested that the applicant’s admission that she had ‘touched’ Mr 

Nichol under the chin constituted an admission of assault and therefore ‘serious misconduct’ 

and she had been the ‘aggressor’ in approaching Mr Nichol. Further, she had only recently 

been trained in the Bullying and Harassment Policy. The applicant’s misconduct meant that 

she should be entitled to no compensation. Alternatively, the Commission should discount 

any award of compensation, pursuant to s 392(3) of the Act. 

[223] Mr Burke addressed the criteria for the Commission to consider when determining the 

amount of an award of compensation. He acknowledged that an order of the Commission was 

unlikely to effect the employer’s enterprise. However, the applicant had been employed 

casually for 14 months and a calculation of remuneration that would have been earned, but for 

the dismissal should take that into account.

[224] In oral submissions, Mr Burke put that the significant factual dispute between the 

parties as to what had occurred in the two incidents was another relevant matter to be 

considered in the Commission’s determination of whether the dismissal had been ‘harsh, 

unjust or unreasonable’ (s 387(h). They gave rise to credit issues in relation to the applicant 

and her witnesses, though he accepted that this was also relevant to determining whether there 

was a valid reason for dismissal (s 387(a)). 

[225] Mr Burke affirmed that the respondent’s position was that where Mr Nichol’s evidence 

conflicted with that of the applicant in relation to the incidents in the meal room and over the 

two-way radio, the evidence of Mr Nichol should be preferred. This conclusion could be 

reached due to the number of inconsistencies in the applicant’s evidence and her supporting 

witnesses. It should be borne in mind that the initial complaint by Mr Nichol was not intended 

to be a full and formal statement of what had occurred. Any later differences were the result 

of elaboration on the initial bare complaint. 

[226] In contrast, Mr Burke observed that the notes made by Ms Green of the applicant’s 

initial interview set out that the comment made to her over the two-way radio was ‘Shut up, 








[2014] FWC 7775

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Suzie’. This represented a contemporaneous recollection in circumstances where the applicant 

was accompanied by a support person. 

[227] Mr Burke rejected any characterisation of Mr Nichol as an arrogant or uncooperative 

witness. Mr Howell had called him a liar on three occasions, but he had not wavered in his 

evidence. Nor was it accepted that Mr Nichol’s stated reason for not complaining earlier (that 

he was waiting for an apology from the applicant) was illogical. He had chosen to speak to Mr 

Carter due to his experience as a Union delegate. Mr Burke urged against any inference being 

drawn against the respondent due to its failure to call Mr O’Connell. 

[228] Mr Burke insisted that the timing of the incident in the meal room was important. It 

had occurred in the course of the 5:00am meal break, rather than the earlier break. If that was 

accepted, this brought the credit of the applicant and Mr Gough into question, particularly as 

Mr Gough had been adamant that he was not present in the meal room at 5:00am. Mr Burke

outlined a number of what he described as inconsistencies in the applicant’s account of what 

occurred in the meal room, where she was sitting and how she said Mr Nichol had punched 

her. 

[229] Mr Burke described Mr McIntyre as an independent and particularly important 

witness. He had only been on his second shift on 26/27 November 2013 and did not have 

connections to the people he was working with, yet he had corroborated that an assault had 

been carried out on Mr Nichol. Even so, he conceded that he appeared to remember it 

differently to Mr Nichol.

[230] Mr Burke submitted that even on the applicant’s version - that she had walked toward 

Mr Nichol with her finger outstretched, saying, ‘I’ll smash you’ - there was a breach of the 

respondent’s Bullying and Harassment Policy in that it was threatening body language. She 

had been trained in this Policy approximately two months previous. If she had felt offended 

by Mr Nichol’s comment on the two-way radio, she should have raised it with her Manager.

[231] Mr Burke complained that the wharfies’ ‘code of silence’ represented an unfair 

hindrance to the ability of the respondent to conduct its investigations. This should be taken 

into account when determining whether the dismissal was ‘harsh, unjust or unreasonable’ (s 








[2014] FWC 7775

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387(h)). It was another reason for the respondent losing trust and confidence in the applicant. 

It was also a reason telling against the applicant’s reinstatement.

[232] Mr Burke referred to the evidence of Mr Sommer and noted that he had given four 

reasons for terminating the applicant. Firstly, she had been involved in an assault. Secondly, 

she was the aggressor in the altercation. Thirdly, the previous two reasons had been 

independently corroborated. Finally, the conduct was a breach of the respondent’s policies.

[233] Mr Burke rejected any assertion by the applicant that there had been a ‘fit-up’ of the 

applicant. This would necessarily have involved Mr Nichol, Mr Carter, Mr Wickham, Ms 

Green, Mr Ryan and Mr Sommer. Such a claim could not be supported by the evidence.

[234] In reply, Mr Howell suggested that if the wharfies’ ‘code of silence’ was accepted as a 

reason for refusing reinstatement, it would follow that the respondent had lost trust and 

confidence in its entire workforce. In any event, the applicant was a individual person and not 

the Union. She had reported the assault by Mr Nichol in her first interview on 28 November 

2013.

[235] Mr Howell described the inconsistencies alleged in the evidence of the applicant as 

immaterial. In reality, they were the kinds of inconsistencies you could expect if someone was 

interviewed numerous times over a period of time. The real material inconsistencies arose in 

the respondent’s case. The evidence suggested that Mr Nichol was lying or grossly 

exaggerating. There was no basis for finding that his allegations were made out.

[236] Mr Howell drew attention to one stanza of the respondent’s Bullying and Harassment 

Policy, which was as follows:

‘ Don’t accept behaviour that may be offensive to you or others. 
 Take positive action to ensure inappropriate behaviour is challenged and reported.’

The applicant had done just this when she spoke to Mr Nichol in the meal room after she 

became aware that he had sworn at her over the two-way radio. Her reaction was not at all 

inappropriate and she had not been obliged to report the incident to management. 

CONSIDERATION








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Statutory provisions and relevant principles

[237] A person has been unfairly dismissed if the Commission is satisfied:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; 

and

(d) the dismissal was not a case of genuine redundancy.

[238] There is no doubt that the applicant was dismissed for serious misconduct as expressed 

in the respondent’s letter terminating her employment, effective 14 January 2014. In para [6] 

above, I observed that the respondent is not a small business and the applicant’s dismissal was 

not a case of genuine redundancy. This leaves for determination by the Commission only the 

question of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’. The 

matters the Commission is required to take into account when considering this question are 

set out at s 387 of the Act as follows:

(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.








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[239] Guidance as to the meaning of the expression ‘harsh, unjust and unreasonable’ can be 

found in the oft-quoted passage of the High Court in Byrne & Frew v Australian Airlines Ltd

(1995) 185 CLR 410 (‘Byrne’), where their Honours, McHugh and Gummow JJ said at para 

[128]:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not 
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the 
concepts will overlap. Thus, the one termination of employment may be unjust because 
the employee was not guilty of the misconduct on which the employer acted, may be 
unreasonable because it was decided upon inferences which could not reasonably have 
been drawn from the material before the employer, and may be harsh in its 
consequences for the personal and economic situation of the employee or because it is 
disproportionate to the gravity of the misconduct in respect of which the employer 
acted’.

[240] It will be seen from this passage that the words ‘harsh’, ‘unreasonable’ and ‘unjust’ 

have their own discrete meaning in an industrial context involving the dismissal of an 

employee. Put another way, a particular dismissal does not have to meet all of the 

characterisations of the three words, but might only be found to meet one or two of them. As 

will be seen from s 387 above, the matters to be considered by the Commission include, 

firstly, whether there was a valid reason for the dismissal and secondly and more broadly, 

whether the employee was afforded procedural fairness in the lead up to, and including the 

dismissal itself. As Mr Howell strongly argued, this is a case which squarely raised these two 

considerations; that is both substantive and procedural unfairness. 

Serious misconduct and the Act

[241] While not expressly couched as a dismissal for serious misconduct in the termination 

letter, it seems an unassailable conclusion that that is precisely how the respondent viewed the 

applicant’s conduct and how it reacted to its findings that the applicant had been found guilty 

of the allegations against her. It is clear that the applicant was summarily dismissed, without 

notice, and that the respondent regarded her conduct as serious misconduct when it said in the 

termination letter, ‘in light of the seriousness of the misconduct...’ In addition, in the show 

cause letter of 16 December 2013, it was said: 

‘The allegations above are very serious. Further, your alleged conduct of physical 
assault, verbal abuse and behaving aggressively towards another Patrick employee, if 
substantiated, would be unacceptable and constitute serious misconduct’








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[242] That being the case, it is apposite to have regard to the meaning of ‘serious 

misconduct’ as prescribed by the Act’s Regulations. Reg1.07(1-3) sets out the definition as 

follows:

‘1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious 
misconduct has its ordinary meaning.

(2) For subregulation (1), conduct that is serious misconduct includes both of the 
following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the 
continuation of the contract of employment;

(b) conduct that causes serious and imminent risk to:

(i) the health or safety of a person; or

(ii) the reputation, viability or profitability of the employer’s business.

(3) For subregulation (1), conduct that is serious misconduct includes each of the 
following:

(a) the employee, in the course of the employee’s employment, engaging in:

(i) theft; or

(ii) fraud; or

(iii) assault; 

(b) the employee being intoxicated at work; 

(c) the employee refusing to carry out a lawful and reasonable instruction that 
is consistent with the employee’s contract of employment.’

[243] It may be safely assumed that the respondent relies on the definition of ‘serious 

misconduct’ as including:

(a) assault of another employee (r 1.07(3)(a)(iii));

(b) her wilful or deliberate behaviour which was inconsistent with the respondent’s 

Bullying and Harassment Policy.

[244] Turning now to the broader principles dealing with serious misconduct, Reg 1.07 

expressly states an employee may be guilty of serious misconduct where such conduct is 








[2014] FWC 7775

62

wilful or deliberate such as to constitute a repudiation of her contract of employment, either 

expressly or implicitly (Reg 1.07(2)(a)). It is sometimes described as conduct which ‘strikes 

at the heart of the employment relationship’, such as to mean that a continuation of the 

relationship is untenable. 

[245] This principle has been elucidated in a number of well known authorities. In North v 

Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

‘It is clear that a single act of disobedience may be sufficient to justify dismissal on the 
ground of misconduct but it was held in Laws v London Chronicle (Indicator 
Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act 
must be such as to show that the employee was repudiating the contract of service or 
one of its essential conditions.’

[246] Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 (referred 

to in the quote above) makes it plain that an act of disobedience or misconduct (justifying 

dismissal) requires also that the disobedience must be ‘wilful’:

‘... I do, however, think (following the passages which I have already cited) that one act 
of disobedience or misconduct can justify dismissal only if it is of a nature which goes 
to show (in effect) that the servant is repudiating the contract, or one of its essential 
conditions; and for that reason, therefore, I think that one finds in the passages which I 
have read that the disobedience must at least have the quality that it is “wilful”:  it does 
(in other words) connote a deliberate flouting of the essential contractual conditions  
(P288).’

[247] In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, Kirby J, dealt with the 

ordinary relationship of the employer and employee at common law and said at para [51]:

‘The ordinary relationship of employer and employee at common law is one importing 
implied duties of loyalty, honesty, confidentiality and mutual trust.  At common law:

“[c]conduct which in respect of important matters is incompatible with the 
fulfilment of an employee’s duty, or involves an opposition, or conflict 
between his interest and his duty to his employer, or impedes the faithful 
performance of his obligations, or is destructive of the necessary confidence 
between employer and employee, is a ground of dismissal.  ...[T]he conduct of 
the employee must itself involve the incompatibility, conflict, or impediment, 
or be destructive of confidence.  An actual repugnance between his acts and his 
relationship must be found.  It is not enough that ground for uneasiness as to its 
future conduct arises.”








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63

In the present case, the findings at trial went beyond mere uneasiness as to the future.  
They necessitated, or at least warranted, a conclusion that the “confidence” essential to 
the relationship of employer and employee had been destroyed.  Instead of pursuing 
the interests of the company and its shareholders, the employee had pursued his own 
private interests.  Not only was the employee in breach of his duty of fidelity and trust 
owed to the employer, he had remained in breach of that duty to the date of the trial.  
Until that time he had not accounted for the benefits wrongly appropriated by him.  
Indeed, he had denied any wrongful appropriation.  The issue so tendered at the trial 
was determined against the employee.  He was then subject to the employer’s counter-
claim for an order to make a refund.  Such order was duly made at trial.  It was not 
contested on appeal.  Given his senior status in the company’s service and the nature 
and extent of the misconduct disclosed in the evidence and accepted by the primary 
judge, it was open to him to find that the employee had undermined the confidence 
essential to the ongoing relationship of employment.  Prima facie, this had afforded a 
legal justification for the employee’s summary dismissal.

It is, however, only the exceptional circumstances that an ordinary employer is entitled 
at common law to dismiss an employee summarily.  Whatever the position may be in 
relation to ‘isolated’ acts of negligence, incompetence or unsuitability, it cannot be 
disputed (statute or express contractual provision aside) that acts of dishonesty or 
similar conduct destructive of the mutual trust between the employer and employee, 
once discovered, ordinarily fall within the class of conduct which, without more, 
authorises summary dismissal.  Exceptions to this general position may exist for trivial 
breaches of the express or implied terms of the contract of employment.  Other 
exceptions may arise where the breaches are ancient in time and where they may have 
been waived in the past, although known to the employer.  Some breaches may be 
judged irrelevant to the duties of the particular employee and an ongoing relationship 
with the employer.  But these exceptional cases apart, the establishment of important, 
relevant instances of misconduct, such as dishonesty on the part of an employee like 
Mr Wells, will normally afford legal justification for summary dismissal.  Such a case 
will be classified as amounting to a relevant repudiation or renunciation by the 
employee of the employment contract, thus warranting summary dismissal.’

[248] In Farquharson v Qantas Airways Limited - PR971685 [2006] AIRC 488, the Full 

Bench of the Australian Industrial Relations Commission (AIRC) referred, with approval, to 

the following analysis of Ross VP (as he then was) in Rose v Telstra Corporation Limited -

1444/98 N Print Q9292 [1998] AIRC 1592:

‘[19] The issue, then, is whether the “out of hours” conduct involves a breach of an 
express or implied term of the contract of employment. Ross VP then considered the 
relevant implied terms:

An employee's implied duty of fidelity and good faith is particularly relevant 
here. One of the most concise and authoritative statements of what is generally 
encompassed by the duty of fidelity and good faith is to be found in Blyth 








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Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ 
said: 

“Conduct which in respect of important matters is incompatible with the 
fulfilment of an employee's duty. Or involves an opposition, or conflict 
between his interest and his duty to his employer, or impedes the 
faithful performance of his obligations, or is destructive of the 
necessary confidence between employer and employee, is a ground of 
dismissal ... But the conduct of the employee must itself involve the 
incompatibility, conflict, or impediment, or be destructive of confidence.
An actual repugnance between his acts and his relationship must be 
found. It is not enough that ground for uneasiness as to future conduct 
arises.”

In the same case their Honours Starke and Evatt JJ note: 

“The mere apprehension that an employee will act in a manner 
incompatible with the due and faithful performance of his duty affords 
no ground for dismissing him; he must be guilty of some conduct in 
itself incompatible with his duty and the confidential relation between 
himself and his employer.” 

... 

The obligations imposed by the common law duty of fidelity and good faith 
operate to prohibit acts outside of the employment which are inconsistent with 
the continuation of the employment relationship. But as Spender AJ observed 
in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the 
employee's acts and his relationship with his employer must be found’.

More recently the implied term of fidelity and good faith has been expressed as 
an obligation to serve the employer loyally and not to act contrary to the 
employer's interest. In England this obligation appears to have been subsumed 
by the more general obligation of mutual trust and confidence. The implied 
term of mutual trust and confidence imposes reciprocal duties on the employee 
and employer that they shall not ‘without reasonable and proper cause, 
conduct themselves in a manner calculated and likely to destroy or seriously 
damage the relationship of confidence and trust between employer and 
employee’.

If conduct objectively considered is likely to cause serious damage to the 
relationship between employer and employee then a breach of the implied 
obligation may arise.

There is some support for the proposition that the existence of an implied term 
of trust and confidence in contracts of employment has been accepted in 
Australia.

The words `trust and confidence' in this context are used in a contractual sense 
rather than as an ingredient of a personal relationship. As McCarry notes: 








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“... the words `trust and confidence', just like the employee's reciprocal 
duties of ‘fidelity and good faith’, do not now refer to the ingredients of 
a personal relationship, even if they once did. The words now 
represent, in shorthand form, a bundle of legal rights which have more 
to do with modes of behaviour which allow work to proceed in a 
commercially and legally correct manner than with ingredients in an 
interpersonal relationship.”

The above statement is consistent with the shift in the nature of the employment 
relationship, from status to contract, referred to earlier. 

[20] His Honour then formulated a summary of principle which has now been applied 
on a number of occasions:

“It is clear that in certain circumstances an employee's employment may be 
validly terminated because of out of hours conduct. But such circumstances are 
limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious 
damage to the relationship between the employer and employee; or 
• the conduct damages the employer's interests; or 
• the conduct is incompatible with the employee’s duty as an employee. 

In essence the conduct complained of must be of such gravity or importance as 
to indicate a rejection or repudiation of the employment contract by the 
employee.”’

[249] In this case, there is a gaping evidentiary conflict as to what occurred in the meal room 

and what physical contact was had between the applicant and Mr Nichol. The applicant 

conceded that she had ‘touched’ Mr Nichol on the collar, but strongly denied grabbing him 

around the throat with one hand and threatening to punch him with the other. Mr Nichol 

insists he was physically assaulted.

[250] Given that the respondent essentially found that Mr Nichol’s version of events was 

substantiated, the onus in this case rests on the respondent to prove, to the Commission’s 

satisfaction, that the misconduct had, in fact, occurred. This evidentiary onus must be 

discharged on the civil onus of proof; namely, on the balance of probabilities set out in 

Briginshaw. 

[251] While decided in an earlier statutory context, the comments of Moore J in Edwards v 

Giudice at paras [4] and [7] are apposite to this case:








[2014] FWC 7775

66

‘4 In the present case the Full Bench concluded that Commissioner Tolley had failed to 
determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra 
Corporation Ltd and that the Commissioner should have done so as part of ascertaining 
whether her termination had been harsh, unjust or unreasonable. The approach of the 
Full Bench was, in my opinion, unexceptionable. When the reason for a termination 
is based on the misconduct of the employee, the Commission must, if it is an issue 
in proceedings challenging the termination, determine whether the conduct 
occurred. The obligation to make such a determination flows from 
s 170CG(3)(a). That is, the Commission must determine whether the alleged 

conduct took place and what it involved. Section 170CG(3) provides:

"In determining, for the purposes of the arbitration, whether a termination was 
harsh, unjust or unreasonable, the Commission must have regard to: 

(a) whether there was a valid reason for the termination related to the capacity 
or conduct of the employee or to the operational requirements of the 
employer's undertaking, establishment or service; and 

(b) whether the employee was notified of that reason; and 

(c) whether the employee was given an opportunity to respond to any reason 
related to the capacity or conduct of the employee; and 

(d) if the termination related to unsatisfactory performance by the employee -
whether the employee had been warned about that unsatisfactory performance 
before the termination; and 

(e) any other matters that the Commission considers relevant." 

...

7 The reason would be valid because the conduct occurred and justified termination. 
The reason might not be valid because the conduct did not occur or it did occur but did 
not justify termination. An employee may concede in an arbitration that the conduct 
took place because, for example, it involved a trivial misdemeanour. In those 
circumstances the employee might elect to contest the termination in the arbitration on 
the basis that the conduct took place but the conduct did not provide a valid reason and 
perhaps also by relying on the other grounds in paras (b) to (e). However an employee 
may not concede or admit, for the purposes of the arbitration, that the conduct 
occurred or may not be prepared to accept that the Commission could assume the 
conduct occurred. In either situation the employee would be putting in issue whether 
the conduct occurred. In my opinion the Commission must, in these circumstances, 
determine whether the conduct occurred as a step in resolving whether there was a 
valid reason. I do not see how the Commission can move straight to a consideration of 
whether termination was justified by assuming the conduct did occur. First the 
Commission would have failed to resolve an issue raised by and relied on by the 
employee, namely whether the conduct occurred at all. Second the Commission would 
have failed to make findings by reference to which a Full Bench might have to 
determine an appeal where the Commission had concluded the termination was harsh 
unjust or unreasonable on assumed facts and not facts found [my emphasis].’








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67

[252] In King v Freshmore, a Full Bench of the AIRC said at paras [24], [26], [28] and [29]:

‘[24] The question of whether the alleged conduct took place and what it involved is to 
be determined by the Commission on the basis of the evidence in the proceedings 
before it. The test is not whether the employer believed, on reasonable grounds after 
sufficient enquiry, that the employee was guilty of the conduct which resulted in 
termination.

...

[26] As we have noted above, s.170CG(3)(a) obliges the Commission to make a 
finding as to whether there was a valid reason for the termination of employment. In 
circumstances where a reason for termination is based on the conduct of the employee 
the Commission must also determine whether the alleged conduct took place and what 
it involved.
...

[28] It is apparent from the above extract that his Honour answered the question of 
whether the alleged misconduct took place on the basis of whether it was reasonably 
open to the employer to conclude that the employee was guilty of the misconduct 
which resulted in termination. This is not the correct approach. The Commission's 
obligation is to determine, for itself and on the basis of the evidence in the 
proceedings before it, whether the alleged misconduct took place and what it 
involved.

[29] In our view the Senior Deputy President failed to determine for himself whether 
Mr King was guilty of misconduct in the way alleged by Freshmore and he should 
have done so as part of determining whether the termination had been harsh, unjust or 
unreasonable. When the reason for a termination is based on the misconduct of 
the employee the Commission must, if it is an issue in the proceedings challenging 
the termination, determine whether the conduct occurred. The absence of such a 
finding leads us to conclude that the member below failed to properly determine 
whether there was a valid reason for the termination of Mr King's employment [my 
emphasis].’

[253] Even accepting that a finding of serious misconduct was open to Patrick, it must not be 

confused with the statutory language. The statute still requires the Commission to find that 

there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of 

Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA, as the 

Commission then was) held at para [16]:

‘[16] In the circumstances of this matter the University purported to terminate Dr 
Asher’s employment for serious misconduct within the meaning of that term in the 
University’s enterprise agreement. If it successfully established that Dr Asher had 








[2014] FWC 7775

68

engaged in serious misconduct it would necessarily follow that there was a valid 
reason for the dismissal. However, the converse is not true. As established by Annetta, 
the question that needed to be considered was whether there was a “valid reason” in 
the Selvachandran sense – whether the reason was sound, defensible or well founded. 
Whether it also amounted to serious misconduct may well be a factor relating to the 
overall characterisation of the termination but it was not an essential requirement in the 
determination of whether a valid reason exists.’

[254] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop J in 

Selvachandran. This meaning has been applied by members of the Commission and its 

predecessors for many years: 

‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of 
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or 
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same 
time the reasons must be valid in the context of the employee’s capacity or conduct or 
based upon the operational requirements of the employer’s business. Further, in 
considering whether a reason is valid, it must be remembered that the requirement 
applies in the practical sphere of the relationship between an employer and an 
employee where each has rights and privileges and duties and obligations conferred 
and imposed on them. The provisions must “be applied in a practical, commonsense 
way to ensure that the employer and employee are treated fairly.’

See also: Culpeper and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

[255] As mentioned earlier, much was put by Mr Howell in respect to the denial of 

procedural fairness afforded to the applicant. It is trite to observe that, even if there was a 

valid reason for an employee’s dismissal, the dismissal may still be held to be unfair if the 

employee was not afforded procedural fairness. This has been a long held industrial principle 

adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals 

and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh

and Gummow JJ said at para [130]:

‘130. That is not to say that the steps taken, or not taken, before termination may not in 
a given case be relevant to consideration of whether the state of affairs that was 
produced was harsh, unjust or unreasonable. Thus, it has been said that a decision 
which is the product of unfair procedures may be arbitrary, irrational or unreasonable 
(168). But the question under cl 11(a) is whether, in all the circumstances, the 
termination of employment disobeyed the injunction that it not be harsh, unjust or 
unreasonable. That is not answered by imposing a disjunction between procedure and 
substance. It is important that matters not be decided simply by looking to the first 
issue before there is seen to be any need to enter upon the second.’








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[256] Three further authorities on the subject of procedural fairness in an unfair dismissal 

case is relevant to the parties in this matter. In Crozier v Palazzo, a Full Bench of the AIRC 

said at para [73]:

‘As a matter of logic procedural fairness would require that an employee be notified of a 
valid reason for their termination before any decision is taken to terminate their 
employment in order to provide them with an opportunity to respond to the reason 
identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect 
if it was sufficient to notify employees and give them an opportunity to respond after a 
decision had been taken to terminate their employment.’

[257] In Wadey v Y.M.C.A. Canberra [1996] IRCA 568, Moore J made clear that an 

employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to 

allegations concerning the employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present 
purposes, two relevant aspects. The first is that the employee must be made aware of 
allegations concerning the employee's conduct so as to be able to respond to them. The 
second is that the employee must be given an opportunity to defend himself or herself. 
The second aspect, the opportunity to defend, implies an opportunity that might result 
in the employer deciding not to terminate the employment if the defence is of 
substance. An employer may simply go through the motions of giving the employee an 
opportunity to deal with allegations concerning conduct when, in substance, a firm 
decision to terminate had already been made which would be adhered to irrespective of 
anything the employee might say in his or her defence. That, in my opinion, does not 
constitute an opportunity to defend.’

[258] Nevertheless, procedural fairness steps should be applied in a commonsense and 

practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an 
employee must be made aware of the particular matters that are putting his or her job 
at risk and given an adequate opportunity of defence. However, I also pointed out that 
the section does not require any particular formality. It is intended to be applied in a 
practical, commonsense way so as to ensure that the affected employee is treated 
fairly. Where the employee is aware of the precise nature of the employer's concern 
about his or her conduct or performance and has a full opportunity to respond to this 
concern, this is enough to satisfy the requirements of the section.’

[259] In addition, it goes without saying that any issue or issues of procedural unfairness 

may not be of such significance as to outweigh the substantive reason/s for an employee’s 








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dismissal, particularly in cases of serious misconduct relating to physical assault where the 

proven misconduct is of such gravity as to outweigh any other considerations such as age, 

length of service, contrition and issues of procedural unfairness generally. This was no doubt 

the approach adopted by Patrick; although it strongly rejected any suggestion that the 

applicant was denied procedural fairness.

Evidence of the incidents

The two-way radio incident

[260] One of the allegations against the applicant, found proven by the respondent, was that 

she had been abusive to other operators over the two-way radio. It would be impossible to 

divorce the incident in the meal room from the earlier incident that day involving the two-way 

radio conversation. In fact, this earlier incident was the genesis of the later confrontation 

between the applicant and Mr Nichol in the meal room.

[261] Unsurprisingly, the applicant and Mr Nichol disagree as to what was said over the 

two-way radio. Mr Nichol asserted, firstly, that the applicant was shouting at the operators in 

a very aggressive manner and, secondly, that she was shouting insults at the operators. He 

conceded that he had said, ‘Shut up, Suzie’. The applicant’s evidence was that Mr Nichol had 

said, ‘Shut the fuck up, Suzie’, although she originally believed it was Mr Gorlicki who had 

done so. Four other operators, including the applicant’s partner, Mr Gough, heard the 

conversation.

[262] Despite Ms Green’s corroboration spreadsheet, from which she concluded that both 

the above allegations of Mr Nichol were corroborated and therefore proven, only the first was 

said to be corroborated by Mr Ferguson (although his evidence actually corroborated the 

applicant’s version of what was said) and no-one corroborated the second allegation. Even 

more telling was that Ms Green and Mr Wickham seemingly ignored the applicant’s 

allegation that Mr Nichol had said to her, ‘Shut the fuck up, Suzie’. 

[263] Of course, what emerged during the course of the evidence in this case was a very 

different picture to the already flimsy basis for Ms Green’s conclusion that ‘all of the 

allegations against the applicant had been corroborated by independent witnesses’. One of 

the operators, Mr Mackerras, now says that he did hear Mr Nichol say, ‘Shut the fuck up, 

Suzie’, having earlier told the respondent (Mr Wickham) that he did not hear or see anything. 








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Mr Mackerras’ failure to disclose what he knew was explained by him that the Union’s 

unwritten ‘code of silence’ requires Union members not to ‘dog on’ (dob in) each other. Mr 

Gorlicki also said that he had heard Mr Nichol say ‘Shut the fuck up, Suzie’, but he also did 

not tell Mr Wickham this at either his first (28 November 2013) or second interview (9 

December 2013). He explained that at the time everyone was still friends, no one had lost 

their job and he certainly did not think the matter would end up in the Commission. He did 

not want to get anyone into trouble. However, now things were very different.

[264] Mr Nichol gave evidence that he had told the applicant to ‘Shut up’ over the two-way 

radio because, as an important means of communication, particularly where safety was 

involved, he was concerned that the two-way was not being used appropriately. Strangely, Mr 

Nichol neither reported nor described what the critical safety issue was which had caused him 

to tell her to shut up. I am satisfied that Mr Nichol’s evidence is not to be believed. His 

evidence was self-serving and uncorroborated. He sought to minimise his involvement in the 

incident in order to paint the applicant as the villain and he the victim. 

[265] I am satisfied on the balance of probabilities that the applicant’s version of events as to 

the two-way radio incident is generally to be preferred over the evidence of Mr Nichol. 

The meal room incident

[266] There was some confusion as to what time the incident occurred in the meal room. 

This arose from the characterisation of what shift the crib break was taken. In my view, this 

confusion neither calls into question the applicant’s credit, nor is it necessarily relevant to the 

essential question as to what occurred during the incident. I agree with Mr Howell in this 

respect.

[267] I consider what is particularly relevant is the size of the meal room and the number of 

employees who were in the room at the time and one of whom, Mr O’Connell, who Ms Green 

found had corroborated Mr Nichol’s allegation that the applicant had ‘stormed into’ the meal 

room shouting. In fact, Mr O’Connell did not support this claim at all (as Ms Green later 

acknowledged). Mr O’Connell was not called by the respondent to give evidence in this case. 

Given what has now been revealed, it is entirely open to find a Jones v Dunkel inference 

adverse to the respondent. I find accordingly. 








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[268] Mr Nichol’s original complaint is set out at para [20] above. In essence, he alleged that 

he had been assaulted by the applicant - that when she stormed into the room, shouting, she 

approached him and said, ‘Tell me to shut up again and I’ll punch you in the head’. She then 

grabbed him by the throat. He elaborated on this by saying the applicant had one hand round 

his throat and the other cocked to strike him. 

[269] The applicant alleged that she had approached the applicant in the meal room and said, 

‘Don’t you ever talk to me like that again’. She had touched him on the collar and Mr Nichol 

‘punched’ her in the neck. 

[270] The meal room is not a large room - about 5 metres wide and 6-7 metres long. It has a 

lino floor, tables and chairs, and at the time, 11 employees were in the room. Except for Mr

Nichol, none of the employees said they heard the applicant storm into the room, shouting. It 

is utterly implausible, that if the applicant had done so, not one of those present in the small 

room reported this claim. They could not have missed such a commotion. I am satisfied this 

allegation cannot be sustained. 

Did the applicant grab Mr Nichol around the throat either with both hands or one? 

[271] One witness, Mr McIntyre, described the contact between the two as ‘cuddling’, yet 

Mr Nichol firstly said that the applicant ‘grabbed me by the throat’. He later said that she  

‘had one hand around my throat, the other hand cocked to strike’. While one might be 

forgiven for forgetting minor details, one could hardly forget someone’s raised hand 

threatening to strike.

[272] Mr Nichol’s version of events is not even corroborated by Mr McIntyre - the very 

person Ms Green exclusively relied on to justify corroboration; Mr Nichol denied touching 

the applicant at all. Mr McIntyre said ‘Paul pushed [her] away - like a flick of the hands’. He 

also said that there was no ‘storm up’ (by the applicant), contradicting Mr Nichol that she 

‘stormed up’ to him. 

[273] Even Ms Green conceded in evidence (PN2706) that Mr Nichol’s version of events 

has not remained consistent. Mr Nichol did not immediately report that he had been assaulted. 

Indeed, he waited till the next day. His explanation for the delay was that he was waiting for 

an apology from the applicant. Mr Nichol’s explanation is nonsense and implausible. I am 








[2014] FWC 7775

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minded to believe that Mr Nichol set about on a course to have the applicant disciplined. He 

needed corroborative evidence in the face of overwhelming evidence to the contrary and the 

‘code of silence’. Enter Mr McIntyre (the volunteer) the day after all the other witnesses had 

been interviewed and no corroboration of Mr Nichol’s version events had been established. 

[274] Mr Nichol complained to Mr Scott Carter - a person he well knew was less than 

sympathetic towards the applicant, because she had questioned Mr Carter’s election to the 

Consultative Committee. Both of them go and complain to Management. Do I smell a rat? 

Given the state of the evidence and my substantive findings, I can make no conclusive finding 

on these concerns (nor is it necessary to do so), save to say that there is a distinct ‘whiff’ 

about these matters.

[275] I say again, I found Mr Nichol’s evidence to be self-serving and improbable. He was a 

witness of little credit and where his evidence differs to that of the applicant, it is the 

applicant’s evidence which should be preferred. No other witness gave a version of events 

consistent with Mr Nichol’s. Mr Young, Mr Ferguson, Mr Cox and Mr O’Connell all thought 

the two of them were ‘playing’ or ‘clowning’ around. No other witnesses described a physical 

altercation between the applicant and Mr Nichol. Nor did any witnesses say that they heard 

the applicant describe Mr Gorlicki as an imbecile.

[276] On the other hand, I found the applicant to be a thoughtful and honest witness. She 

accepted propositions against her own interests and did not seek to embellish or exaggerate 

her evidence in order to mislead. She agreed that it was perhaps not the best response to 

confront Mr Nichol in the way she did. However, I believe she had been provoked by Mr 

Nichol and her reaction to being told in front of colleagues to ‘Shut the fuck up’ was 

unfortunate, but understandable.

[277] I am satisfied, on the balance of probabilities, that the evidence generally supports the 

applicant’s version of events in the meal room, as described in para [23] above. Mr Nichol’s 

evidence was self-serving and inconsistent. It is unreliable. There was no cogent corroborative 

evidence which supported his version of events. As I said earlier, he sought to colour or 

exaggerate his evidence to paint the applicant as the one who physically assaulted him and he 

was merely the innocent victim. At one point, he described the applicant as having ‘violent 

tendencies’. There was absolutely no foundation for such an allegation and did no more than 








[2014] FWC 7775

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confirm Mr Nichol as a witness of little credit. In my view, his conduct on that day should be 

reviewed in light of this decision and appropriate action taken.

[278] To the extent that Ms Green relied wholly on Mr Nichol’s version of events and 

erroneously concluded his version was corroborated by independent witnesses, her ultimate 

findings and recommendation of dismissal cannot be allowed to stand. To do so would be a 

gross miscarriage of justice.

Failures of the Investigation

[279] Obviously, Patrick’s investigation was not assisted by the wharfies’ ‘code of silence’. 

Indeed, it was positively hampered by it. It must be noted that whatever be the reality of the 

existence of the ‘code or silence’ or the Union’s unwritten acceptance of such a code within 

the ranks of wharfies, it is inconsistent with an employee’s obligation to be open, frank and 

honest with one’s employer when asked about serious issues in the workplace: See: Telstra v 

Streeter [2008] AIRCFB 15 at paras [14], [15] and [20]; and Thompson v John Holland 

[2012] FWA 10363 at [151]. If this ‘code of silence’ results in an inconclusive - or worse - an 

erroneous outcome from the employer’s investigation, then the Union can hardly complain, 

with any sincerity, that the investigatory process was flawed. 

[280] That being said, the respondent’s investigation was flawed for other more fundamental 

reasons. There was no suggestion that the applicant had deliberately or wilfully failed to 

cooperate with the investigation. However, two very serious side-issues were disclosed in the 

evidence on this point. Firstly, after the 28 November 2013 meeting, Mr Wickham told the 

applicant to come back to work because no one could confirm Mr Nichol’s version of events. 

Strangely and inexplicably, the next day, a new witness (Mr McIntyre) comes forward 

voluntarily. The applicant is then suspended, but Mr Nichol is not, despite Mr Wickham 

having been told by the applicant that it was Mr Nichol who had provoked her.

[281] What should have set the alarm bells ringing is that on 28 November 2013, six people 

were interviewed by Mr Wickham (Mr Mackerras, Mr Young, Mr Gorlicki, Mr J Roach, Mr 

Ferguson and Mr McConnell). None of them corroborated Mr Nichol’s version of events. The 

very next day, a new witness, Mr McIntyre, volunteered new information, which allegedly 

corroborated Mr Nichol’s account. All of them had been in the same small meal room, yet Mr 

McIntyre’s version of events is the only one which was accepted. This seems very odd indeed.








[2014] FWC 7775

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[282] In the ordinary course of an investigation concerning conflicting allegations of assault 

and provocation, involving two employees, the employer would suspend both employees until 

the investigation revealed more conclusive findings. It is to be regretted that this did not occur 

in this case.

[283] Secondly, notwithstanding the so-called wharfies’ ‘code of silence’ and the view of a 

number of witnesses that disagreements or confrontations between Union members should be 

dealt with internally within the Union, Mr Nichol took Mr Carter, the Union Delegate, to the 

boss to complain about the applicant’s conduct. There was evidence in the case that the 

applicant had questioned Mr Carter’s earlier election to the Consultative Committee. Was she 

viewed by Mr Carter as a threat? Hence, his apparent willingness to assist Mr Nichol in 

having her adversely dealt with by management.

[284] As I said earlier, there were serious and fundamental flaws in the conclusions and 

recommendations Ms Green made to Mr Sommer. Notwithstanding the impediments in the 

investigation by the wharfies ‘code of silence’ (which I observe was not even mentioned by 

the investigators), Mr Howell, methodically, comprehensively and successfully demolished 

Ms Green’s statement evidence and findings that Mr Nichol’s ‘allegations have all been 

validated by numerous individuals’. This was no insignificant or passing finding; it lay as the 

cornerstone - the foundation - upon which Ms Green made the recommendation to Mr 

Sommer that the applicant be dismissed.

[285] In my judgement, Ms Green’s failures would constitute a sufficient basis for a finding 

that the applicant’s dismissal was unfair. I think it apposite to quote from some of Ms Green’s 

cross-examination:

MR HOWELL:  With the greatest of respect, I did, more than once.  But to be fair, just 
in case, I'll do it again.  Page 75, Ms Green, first paragraph in the brackets, "(she was 
shouting insults)" that's Mr Nichol's, complaint, right?  That's not the only part, and 
I'll come to the rest of it, don't worry - but that was part of his complaint, right?---Yes.

That is not corroborated, supported, validated, anywhere, is it?---No.

...








[2014] FWC 7775

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So if Mr Gorlecki's evidence to this Commission is that you never asked him that 
question, the company never asked him that question, that is whether or not someone 
had shouted insults at him, you cannot give evidence which contradicts that, can you?-
--No.

...

Now, so, again, that's another claim made by Mr Nichol which is not corroborated by 
anybody, that's right, isn't it?  No-one else describes my client as having accused a 
forklift driver, over the radio, that night, of having been an imbecile? ---Not directly.

...

Can you show me where in your notes it says she was shouting?---Based on the 
information of a spray and what was said was - - -

Okay.  I'll ask you the same question again.  Can you show me in your notes where it 
says "shouting"?---No.

...

Right.  Now, again, I'll put it to you squarely that is not corroborative of Mr Nichol's 
allegations about the use of the radio at all, is it?---No.

So we don't have - we have nothing about insults over the radio, that's right, isn't it -
other than Mr Nichol?---Yes.  

We have nothing about shouting in a very aggressive manner to a forklift driver over 
the radio.  It went on for a few minutes, do we?---No.  

And we have Mr  Ferguson's of events which sounds remarkably like the version of 
events which was described to the company by my client, doesn't it?---Yes.  

So not only is it not corroborative of any of the allegation made against my client, it 
actually corroborates my client's version of events, doesn't it?---Yes.

So the claim that you made in your email to the decision maker that the allegations 
had been put forward - sorry, I withdraw that - the allegations that had been put 
forward by Paul Nichol have all been validated by numerous individuals, is just 
wrong?---Yes.

...

I want to put it to you, in fairness, that if you had made a considered objective analysis 
of the allegation about the use of the radio, you could simply not have made the claim 
that you did in this email that the allegations that had been put forward by Paul 
Nichol have all been validated by numerous individuals.  Do you accept that or not?---
I accept that.

...








[2014] FWC 7775

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Does "clowning around" do you see that in the third line, "I thought it was a bit of 
clowning around."  Does that sound to you like it's corroborating "came storming in, 
shouting at the top of her voice 'If you tell me again to shut up I'll punch you in the 
head'"?---No.

...

Can you show me where it says "shouting"?---No.  I cannot.

Can you show me where it says anywhere about "punching"?---No.  

...

All right.  And what you've noted in quotation marks, no less, is "Nicko, don't ever talk 
to me over the radio like that again."  You put it in quotation marks - sorry, I'll take a 
step back.  That's your practice, isn't it, when you're in a - you're in the interview and 
someone's actually describing to you a quotation, you put it in quotation marks, don't 
you?---Yes.  

And so what - what I'm putting to you is - again, doing the best you can - I appreciate 
this interview was some time ago and you're going off your written notes - but you 
would have put that in quotation marks because that's what he told you in the 
interview, that was the quotation he gave you in the interview, right?
---Or words to that effect.  

Okay.  Words to that effect, but if he had said something - I think you've already 
accepted this but just to be clear, if he had said something about the threat being 
about punching you would have noted that, wouldn't you?---Yes.  

Now, that sounds remarkably close - in fact, almost word for word what my client told 
the company she had said, isn't it?---Yes.  

...

Okay.  Let me ask you this: how does clowning around sit with what Mr Nichol 
described on page 75?  How does it sit with, in your mind, fact finder, investigator, 
how does that sit with, "Came storming in, shouting at the top of her voice, 'If you tell 
me to shut up again I will punch you in the head.'" How does clowning around sit with 
that to you?---It doesn't.

Right.  So whatever they were doing, whatever she said, it didn't corroborate what Mr 
Nichol's complaint was, did it?---No.  

Okay.  Now, of course, Mr O'Connell doesn't saying anything at all about a physical 
altercation between the pair, does he?---No, he didn't, no.

...








[2014] FWC 7775

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You had a number of people in that room who said they didn't hear anything before 
Mr Nichol shouting, didn't you?---Yes.  

Without going into specifics, the general theme of that evidence is corroborative of my 
client's account that she didn't shout at Mr Nichol when she was in that room.  Do you 
accept that?---Yes.

...

Right.  Now, one of the - I want to suggest to you that it's not a finer detail, not the sort 
of thing that you would expect people to differ on when what you're investigating is an 
allegation that one hand  around the throat, the other hand ready to punch me, verses 
two hands around the throat.  I want to suggest to you that one of those, in fact, does 
not corroborate the other.  Do you accept that or not?---Yes.

...

What it's not consistent with is a complaint made by Mr Nichol that my client came 
charging into the room, a few seconds from door, to where he was, shouting very 
aggressively, grabbing him around the throat, holding him there with one hand, 
threatening to strike him.  What Mr O'Connell says is not consistent at all with that, 
would you accept that?---Yes.

...

Thank you.  Now, are there any others?  Whilst you're looking, you didn't say in your 
email to Mr Sommer that the inconsistencies were marginal at best, did you?---No.  
The next inconsistency is where the punch was directed to the neck, which was altered 
between different interviews and allegations of conflict.

...

Thank you.  So - and, again, I want to suggest to you none of those inconsistencies that 
you've identified are so fundamental as to strike at the core of the version that my 
client told the company, are they?---No.

...

In that part of your investigations report, for want of a better way to describe it, your 
email, you say in the show cause meeting that was held on 9 January, "Susan again 
put forward a varied version of events from the morning in question."  Simply saying 
that without describing them in any real way paints the picture that my client's version 
of events is materially significantly different - materially or significantly different.  Do 
you accept that?---Yes.  

And that would be completely misleading, wouldn't it?---Yes.

...








[2014] FWC 7775

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I think you've accepted this already but just to be clear because it was by reference to 
something else.  I want to suggest to you, firstly, Mr Nichol's version of events have 
not been validated by numerous individuals.  Do you accept that?---Yes.

And his versions have not remained consistent?---Correct.

[286] Mr Sommer’s cross-examination was also candid and illuminating, as the following 

few examples serve to demonstrate:

THE DEPUTY PRESIDENT:   Mr Sommer, did you call up the witness statements that 
were taken during the investigation to review yourself independently?---No, I didn't, 
your Honour.

So what did you rely on in making your decision, just the email from Ms Green?
---Correct.

Nothing else?---No.

...

MR HOWELL: If Mr Wickham and Ms Green had accepted in cross-examination that 
– we'll use the radio allegation for starters, the radio allegation being that the 
applicant had engaged in abusive and inappropriate use of the radio network.  If both 
Mr Wickham and Ms Green had accepted in cross-examination that the material that 
they had relied upon to form a view that that allegation was proved did not in fact, 
when properly assessed, support that conclusion and in fact supported the account 
given by the applicant, you would have been misled?---On that point, yes.

...

Indeed, you would have been misled.  You formed a view, as you've described here, 
and relied upon in making your decision to dismiss that the applicant's explanation of 
what had occurred was inconsistent and had varied on a number of occasions during 
the incident.  If Ms Green had accepted based on cross-examination of her email that 
the core of the applicant's versions of events had not changed and to the extent it had 
changed at all, it was marginal at best, you had been misled?---I accept that on that 
point.

...

If the claim that Mr Nichol – sorry, withdraw that.  If the claim that the applicant had 
grabbed Mr Nichol around his throat while continuing to yell words to the effect of, 
"Don't you ever talk to me like that again," had not been corroborated by anyone, you 
had been misled, right?---Entirely uncorroborated?

Uncorroborated?---Correct.

...








[2014] FWC 7775

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And if someone had said that the cuddle corroborated the grip around the throat, 
one hand ready to punch and you had not been told about that difference and simply 
told that one corroborated the other, then you would have been grossly misled, right?-
--Correct.

...

So if in fact the information disclosed to the investigation did not show that the 
applicant had engaged in conduct that could reasonably be described as aggressive, 
you would've been misled?---Yes.

[287] In cross examination, Ms Green appeared uncomfortable and nervous, particularly as 

Mr Howell ‘warmed up’. However, I am satisfied that Ms Green was not an untruthful 

witness. She gave mostly one word answers which, embarassingly, effectively scuttled her 

own investigation and findings. Mr Burke asked only a few questions in re-examination, 

perhaps demonstrating that Ms Green’s evidence had been manifestly unhelpful to the 

respondent’s case. Nevertheless, I thank them both and Mr Sommer for not labouring to 

defend the indefensible.

[288] Ms Green had never conducted a disciplinary investigation into allegations of physical 

assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of 

witness evidence, was a major contributory factor to the weaknesses exposed in the 

respondent’s evidentiary case. This should not be seen as a criticism, per se of Ms Green, but 

rather it demonstrates a failure of senior management to recognise the seriousness of the 

issues and their causes and a failure to independently assess the investigator’s findings and 

recommendations. Ms Green should not be blamed for these failures.

[289] Similarly, Mr Wickham’s role in the investigation cannot pass without criticism. In an 

extraordinary admission, Mr Wickham was told by Mr Cox that he had observed Mr Nichol 

‘punch’ the applicant (as she had also told Mr Wickham), but he chose not to investigate this 

claim. This was grossly unfair to the applicant and meant his role in the investigation was 

seriously compromised. Nevertheless, Mr Wickham gave embarrassingly frank admissions, as 

these abstracts from transcript disclose:

‘Right.  Now, one of the things you didn’t address with any of those people you 
interviewed after having interviewed the applicant is the applicant's complaint that 








[2014] FWC 7775

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Mr Nichol had in fact punched her in the exchange she had with him.  That's right, 
isn't it?---From what I recall, that wasn't on the table at that time.

Are you sure about that?  Have you got exhibit D there with you;  the bundle of 
material?  Can you have a look at page 90?---Yes.

Have you got that?---Yes.  Yes.

So it was on the table, wasn't it?---Yes, it was on the table, yes.

Pardon?---Yes.

Not only that, she goes on to say there was a history of harassment from Nicko.  That's 
right, isn't it?  Down the bottom, bottom third?---She did say that, yes.

...

He corroborates physical contact by Mr Nichol to the applicant?---Yes.

...

All right, so we've had Mr McKerris and we've had Mr Gorlicki so far.  Mr McKerris 
doesn't corroborate anything.  Mr Gorlicki, to the extent he corroborates anything in 
part corroborates both and otherwise corroborates the applicant, right?---Correct.

...

So again, to the extent Mr Ferguson provides an account, it's consistent with what the 
applicant had said?---Yes.

...

So to the extent Mr O'Connell gives you an account, it is grossly inconsistent, I want to 
put to you, between what Mr Nichol has told you and is actually consistent - firstly, do 
you accept that?  It's grossly inconsistent with the idea that, "Susan had stormed 
across the room, grabbed me by the throat, still yelling, very aggressive"?---Yes.

Again, there's no mention at all of her having come storming in, shouting at the top of 
her voice, "If you tell me to shut up again I'll punch you in the head"?---Yes.

Again, it's grossly inconsistent with Mr Nichol's account, yes?---Yes.

...

"Susan stormed across the room and grabbed me by the throat, still yelling, very 
aggressive."  Does that sound like cuddling him to you?---No.

That doesn't corroborate that at all, does it?---No.

It corroborates the physical touching, yes?---Yes.








[2014] FWC 7775

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...

The first time we get anyone who says anything about hands on the throat is after all 
of those interviews and a shift and a half later, yes?---Yes.

...

All right.  So coming back then to your affidavit and paragraph 35, the information 
that you have as at the end of the 28th and 29th, did not actually corroborate 
Mr Nichol's version of what occurred, did it?---No.

Mr Cox had described in the interview that you had had with him on 4 December 
having observed a punching action by Mr Nichol towards the applicant, right?---
Which page is that, sorry?

Sure, page 170, right at the very, very back;  last page.  "David was sitting at Susie's 
table.  Susie got up from her seat, walked over to Paul.  David said Susie made some 
sort of physical approach.  David saw Nico, Paul Nichols, throw a punch in Susie's 
direction but to my knowledge it was not going to connect."  Yes?---Yes.

His description as recorded by you - "Throw a punch in Susie's direction" - yes?---
Yes.

So again, it corroborates the applicant's description of a punch, albeit says he didn't 
think it was going to connect?---Yes.’

[290] There were other aspects of the investigation which give rise to serious concerns. Mr 

Sommer was the person who ultimately made the decision to dismiss the applicant on the 

recommendation of Ms Green. The only information Mr Sommer relied upon was Ms Green’s 

email of 10 January 2014. Ms Green’s evidence was she had no conversations with Mr 

Sommer during the investigation or before he made his decision. Ms Green’s evidence was 

that she now accepts that she did not tell Mr Sommer that any inconsistencies in the 

applicant’s version of events were ‘marginal at best’.

[291] Ms Green further conceded that some of what she described as inconsistencies in the 

applicant’s version of events, were in fact the applicant providing further detail of her 

response. She agreed that none of these inconsistencies warranted the applicant’s dismissal 

and her recommendation to Mr Sommer was misleading. In Ms Green’s statement (para 

49(a)), she claimed that applicant had admitted assaulting Mr Nichol. Ms Green now 

acknowledges that this was incorrect.








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[292] Amazingly, Ms Green chose to only investigate Mr Nichol’s allegations and not any of 

the claims raised by the applicant in her first interview. These were:

(a) Mr Nichol had punched her;

(b) Mr Nichol’s history harassing her; and

(c) her complaints over the roster.

[293] Incredibly, Mr Wickham’s own notes of the applicant’s first interview record that Mr 

Nichol had a history of harassing people (see para [25]). Either Ms Green ignored this or was 

not told of it, as she should have been. In any event, Ms Green’s approach to the investigation 

was biased, incomplete and totally one sided. 

[294] As to all the allegations against the applicant, it is plainly obvious that the respondent 

has not discharged the onus it bears in proving the allegations. I turn now to the specific 

criteria the Commission is required to take into account under s 387 of the Act. 

Was there a valid reason for the applicant’s dismissal (s 387(a))?

[295] Unsurprisingly, the respondent’s evidentiary case in this proceeding was so hopelessly 

compromised that there can be only one inevitable answer to the question of whether there 

was a valid reason for the applicant’s dismissal. That answer must be in the negative. I 

venture to say that Patrick and Mr Burke will not be the least surprised at such an outcome, 

given it was the respondent’s witnesses whose frank and embarassing admissions brought its 

case unceremoniously undone.

Was the applicant notified of the reason for her dismissal (s 387(b))?

[296] The applicant was notified of the reasons for her dismissal. However, as these reasons 

have not been made out, this consideration is of neutral relevance in this case.

Was the applicant afforded an opportunity to respond to the reasons for her dismissal (s 

387(c))?

[297] The applicant was provided with an opportunity to respond to the allegations. There 

were at least five meetings with management and she also responded in writing to the 

allegations. However, as previously mentioned, the respondent chose to ignore her claims 

against Mr Nichol and did not investigate them. Had it done so, there may well have been a 

different outcome, other than dismissal.








[2014] FWC 7775

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[298] In addition, I note that the applicant was given no opportunity to respond to the actual 

decision maker, Mr Sommer. Given Mr Sommer relied wholly on what Ms Green told him in 

the 10 January email, the applicant was denied an opportunity to correct inaccuracies in the 

email and inform Mr Sommer of her explanations and her own claims against Mr Nichol. 

Was there any unreasonable refusal by the respondent to allow the applicant to have a 

support person (s 387(d))?

[299] The applicant was not denied the opportunity to have a support person present during 

her interviews. She attended meetings with either her Union official and or/ her partner and 

another person. This is a neutral consideration in this case.

Was the applicant warned about unsatisfactory performance (s 387(e))?

[300] The applicant was dismissed for serious misconduct. Accordingly the question of 

whether warnings were given for unsatisfactory performance do not arise in this case. 

Was the size of the employer’s enterprise likely to impact on the procedures followed in 

effecting the dismissal (s 387(f))?

[301] The respondent is a large, well-resourced business, with a long history of dealing with 

numerous and contentious issues in the workplace. It failed miserably on this occasion to take 

the necessary steps to ensure the applicant was treated fairly and it failed to ensure that the 

allegations against her were properly and thoroughly investigated. Had it done so, I am certain 

a different outcome would have been the result.

Was the absence of dedicated human resource management specialists or expertise in 

the enterprise likely to impact on the procedures followed in effecting the dismissal (s 

387(g))?

[302] The respondent has access to its own dedicated internal human resource specialists, 

and no doubt also to expert legal opinion. I note that Mr Wickham had only been employed at 

Newcastle for eight weeks at the time of the incident. As mentioned earlier, Patrick ill-

advisedly entrusted Ms Green to conduct a serious investigation which was not within her 

experience or expertise to properly conduct. The result became glaringly obvious during the 

course of the evidence in this case. Given Ms Green’s lack of expertise, it behoved senior 

management, at the very least, to seek a second or independent opinion on the evidence the 








[2014] FWC 7775

85

respondent had available to it. That this was not done, reflects poorly on the respondent’s 

senior management. I go as far to say, that had the respondent been given proper legal advice 

(or it had and rejected it) then this case would not  have ended up in arbitral proceedings.

Other relevant matters (s 387(h))

[303] The other matters I consider relevant have been canvassed earlier in this decision. 

However, I would add for completeness that:

(a) there was no evidence that the applicant had anything other than an exemplary 

employment history with the respondent;

(b) there was no evidence of any similar behaviour to that which was alleged 

incorrectly against her either in the workplace or outside it;

(c) the applicant appears to have a large number of fellow workers who would 

welcome her back to the workplace. 19 employees signed a petition to this 

effect (see para [49]); and

(d) the applicant is the sole carer for her young daughter.

[304] For all the aforementioned reasons, I find that the applicant’s dismissal on 14 January 

2014 was ‘harsh, unjust and unreasonable’ both substantively and procedurally within the 

meaning of s 387 of the Act. I turn now to remedy.

Appropriate Remedy

[305] The remedies for an unfair dismissal are set out at s 390 of the Act as follows:

‘(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the 
payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal 
(see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under 
section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in 
all the circumstances of the case.’








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[306] It is plain from a reading of s 390(3) above that the legislature intended to give 

primacy to reinstatement in circumstances where an employee has been unfairly dismissed 

and the Commission is required to exercise a discretion as to any orders in respect to remedy. 

Lest there be any doubt as to this proposition, one of the objects of Part 3-2 of Ch 3, dealing 

with unfair dismissal, states:

‘(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on 
reinstatement.’

[307] I also refer to what was said by the Full Bench of the Commission in Colson v Barwon 

Health [2014] FWCFB 1949, where at para [29], it was said:

‘[29] The passages from which the sentences relied on by the Appellant are extracted 
clearly indicate that the Deputy President understood and applied the statutory 
requirements in respect of reinstatement, as does the broader context of his decision. 
The Deputy President noted the primacy of reinstatement as a remedy for an unfair 
dismissal. His observations about primacy did no more than state that consideration of 
reinstatement against the test of whether it is inappropriate was required (and a finding 
that it is inappropriate is required) before compensation in lieu could be ordered and 
does not provide licence to search for a reason to order an employee’s reinstatement 
when that is not appropriate. The requirement to find that reinstatement is 
inappropriate before considering compensation in s.390 of the Act gives effect to the 
emphasis on reinstatement in s.390(1)(c) of the Act [footnote omitted].’

[308] In my opinion, there is no sound or cogent reason why the applicant should not be 

reinstated. Given the primacy placed on reinstatement of an unfairly dismissed employee, it is 

appropriate that this occur. The evidence of inappropriateness of reinstatement, such as it was, 

from Ms Green and Mr Sommer (loss of trust and confidence and the seriousness of the 

allegations) ‘rings rather hollow’ considering my conclusions as to the manifest injustice 

suffered by the applicant as a consequence of her dismissal.

[309] In Nguen v Vietnamese Community in Australia [2014] FWCFB 7198, the Full Bench 

of the Commission recently discussed the meaning of ‘inappropriate’ in the context of s 390 

and helpfully summarised the relevant case law as to a loss of trust and confidence telling 

against an unfairly dismissed employee’s reinstatement. At paras [14]-[28], the Full Bench 

said: 








[2014] FWC 7775

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‘[16] We now turn to the relevant question concerning the appropriateness of 
reinstatement.

[17] Reinstatement might be inappropriate in a whole range of circumstances, for 
example if such an order would be futile such as where reinstatement of an employee 
would almost certainly lead to a further termination of the employee’s employment 
because the employer has since discovered that the employee engaged in an act of 
serious misconduct which was only discovered after the employee’s termination or if 
the employer no longer conducts a business into which the employee may be 
reappointed. The fact that the employer has filled the position previously occupied by 
the dismissed employee would rarely, of itself, justify a conclusion that reinstatement 
was not appropriate. As a Full Bench of the AIRC observed in Smith v Moore Paragon 
Australia Ltd,:

“It will often, if not typically, be the case that the position occupied by an 
applicant for relief under s.170CE of the Act will, at the time the application is 
arbitrated, either no longer exist or no longer be vacant. In our view that bare 
fact would rarely, on its own, justify a conclusion that an order for 
reinstatement was not ‘appropriate’. To adopt such an approach would tend to 
defeat the remedial purpose of the legislation.”

[18] A similar observation was made by Northrop J in Johns v Gunns Ltd

[19] Reinstatement may be inappropriate if an employee is incapacitated because of 
illness or injury. The weight to be accorded to ongoing incapacity when considering 
whether reinstatement is appropriate will depend upon all of the circumstances of the 
case.

[20] The most common argument advanced in support of the proposition that 
reinstatement is inappropriate is the proposition, variously expressed, that there has 
been a loss of trust and confidence such that it would not be feasible to re-establish the 
employment relationship.

[21] In Perkins v Grace Worldwide (Aust) Pty Ltd the Full Court of the Industrial 
Relations Court considered the effect of a loss of trust and confidence on the question 
of the “practicability” of a reinstatement remedy and said:

“Trust and confidence is a necessary ingredient in any employment 
relationship... So we accept that the question whether there has been a loss of 
trust and confidence is a relevant consideration in determining whether 
reinstatement is impracticable, provided that such loss of trust and confidence 
is soundly and rationally based.

At the same time, it must be recognised that, where an employer, or a senior 
officer of an employer, accuses an employee of wrongdoing justifying the 
summary termination of the employee’s employment, the accuser will often be 
reluctant to shift from the view that such wrongdoing has occurred, irrespective 
of the Court’s finding on that question in the resolution of an application under 
Division 3 of Part VIA of the Act.








[2014] FWC 7775

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If the Court were to adopt a general attitude that such a reluctance destroyed 
the relationship of trust and confidence between employer and employee, and 
so made reinstatement impracticable, an employee who was terminated after an 
accusation of wrongdoing but later succeeded in an application under the 
Division would be denied access to the primary remedy provided by the 
legislation. Compensation, which is subject to a statutory limit, would be the 
only available remedy. Consequently, it is important that the Court carefully 
scrutinise any claim by an employer that reinstatement is impracticable because 
of a loss of confidence in the employee.

Each case must be decided on its own merits. There may be cases where any 
ripple on the surface of the employment relationship will destroy its viability. 
For example the life of the employer, or some other person or persons, might 
depend on the reliability of the terminated employee, and the employer has a 
reasonable doubt about that reliability. There may be a case where there is a 
question about the discretion of an employee who is required to handle highly 
confidential information. But those are relatively uncommon situations. In 
most cases, the employment relationship is capable of withstanding some 
friction and doubts. Trust and confidence are concepts of degree. It is rare for 
any human being to have total trust in another. What is important in the 
employment relationship is that there be sufficient trust to make the 
relationship viable and productive. Whether that standard is reached in any 
particular case must depend upon the circumstances of the particular case. And 
in assessing that question, it is appropriate to consider the rationality of any 
attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ 
a person the employer believed to have been guilty of wrongdoing. The 
requirement may cause inconvenience to the employer. But if there is such a 
requirement, it will be because the employee’s employment was earlier 
terminated without a valid reason or without extending procedural fairness to 
the employee. The problems will be of the employer’s own making. If the 
employer is of even average fair-mindedness, they are likely to prove short-
lived. Problems such as this do not necessarily indicate such a loss of 
confidence as to make the restoration of the employment relationship 
impracticable.”

[22] As the Full Bench of the AIRC observed in McLauchlan, although Perkins was 
decided under the IR Act, the Court’s observations reproduced above remain relevant 
to the question of whether reinstatement is appropriate in a particular case.

[23] In speaking of ‘trust and confidence’ in this context we are concerned with that 
which is essential to make an employment relationship workable. It is not to be 
confused with an implied term in a contract of employment of mutual trust and 
confidence, the existence of which was recently eschewed by the High Court in 
Commonwealth Bank of Australia v Barker.

[24] While it may be accepted that trust and confidence is a necessary ingredient in 
any employment relationship, it would be wrong to assume that it is the sole criterion 
or even a necessary one to determine whether or not reinstatement is appropriate. As 








[2014] FWC 7775

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Justice Gray observed in Australasian Meat Industry Employees’ Union v G & K 
O’Connor Pty Ltd (O’Connor) the development of the law relating to trust and 
confidence in the employment relationship commenced when that relationship 
invariably involved a close personal relationship between the employer and employee, 
but with the emergence of corporate employers, the importance of trust and confidence 
in the employment relationship has diminished.

[25] Justice Gray’s remarks were considered by Deputy President Gostencnik in 
Colson v Barwon Health in which the Deputy President observed:

“I do not take his Honour’s comments to mean that trust and confidence as an 
element of the employment relationship is no longer important. It is merely 
recognition that in many cases it will be important to have regard to the totality 
of the employment, and that in the case of a corporate employer, the loss of 
trust and confidence in the employee will be by a manager or managers of the 
corporate employer. But as his Honour observed, in such cases the “critical 
question must be what effect, if any, a loss of trust by the manager in an 
employee is likely to have on the operation of the workplace concerned”. 28 It 
is important to understand that his Honour’s observations were made in the 
context of an interlocutory application while His Honour was considering 
“balance of convenience” arguments against reinstatement on an interlocutory 
basis. His Honour’s observation about the effect of the shift from a personal to 
a corporate employment relationship were made as an introduction to his 
conclusion that the respondent did not provide any evidence on the “critical 
question” as identified. So much is clear from the following passage:

. . . It might be more significant, for instance, to know the name of Mr 
Voss’s immediate supervisor and to know the attitude of that person 
towards him. If the immediate supervisor had no trust in Mr Voss, it 
might also be relevant to know whether it would be possible to place 
Mr Voss in another part of the workplace, under another supervisor, 
who did have such trust. It would also be relevant to know what effect 
any lack of trust by any manager or supervisor in a particular employee 
might have on the conduct of operations in the workplace. There is no 
evidence as to any of these matters. 
[43] Resort to an assertion that trust and confidence in a particular 
person have been lost cannot be a magic formula for resisting the 
compulsory reinstatement in employment of the particular person.”

In my view, His Honour is merely saying that it is not enough to simply assert 
that trust and confidence in an employee has been lost. Where this is relied 
upon then there must be evidence from the relevant managers holding that view 
and an assessment must be made as to the effect of the loss of trust and 
confidence on the operations of the workplace. In short, all of the 
circumstances must be taken into account. This seems evident and is hardly 
controversial.”

[26] Permission to appeal from Deputy President Gostencnik’s decision was refused.






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[2014] FWC 7775

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[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 
[footnotes omitted].’

[310] The applicant obtained alternative employment around 2 June 2014 and has been paid 

a comparable rate of pay to that which she was earning before her dismissal. Accordingly, I 

propose to make consequential orders for the payment by the respondent to the applicant for 

all lost remuneration between 14 January 2014 and her reinstatement, less any income earnt 

by the applicant during this period. 

[311] A further order will be made that the applicant’s continuity of service shall not be 

taken to have been broken by her dismissal.








[2014] FWC 7775

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[312] The applicant’s reinstatement to her former position as a Senior Tally Clerk shall take 

effect within 14 days of today or such other date as may be agreed by the parties.

DEPUTY PRESIDENT

Appearances:
Mr A Howell of Counsel with Mr A Jacka of the Maritime Union of Australia for the 
applicant.
Mr S Burke, Solicitor with Ms T Green and Ms C Ross for the respondent.

Hearing details:
2014:
Newcastle.
27, 28, 29 May
13, 14 August

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