1
Fair Work Act 2009
s.394—Unfair dismissal
Noel Cannan
v
Nyrstar Hobart Pty Ltd
(U2013/15506)
Kevin Fuller
v
Nyrstar Hobart Pty Ltd
(U2013/15509)
DEPUTY PRESIDENT WELLS HOBART, 19 SEPTEMBER 2014
Application for unfair dismissal remedy – condonation – toleration – procedural fairness.
Introduction
[1] Mr Noel Cannan and Mr Kevin Fuller (the Applicants) both filed applications for an
unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act)
following the termination of their employment by Nyrstar Hobart Pty Ltd (ACN 124 818 113)
(Nyrstar). The letters of termination cited “serious misconduct”1 as the reason for termination.
The Applicants sought reinstatement to their former positions as Operators in Casting at
Nyrstar’s Risdon Smelter.
[2] The applications proceeded to conciliation before a Fair Work Conciliator but were
unresolved and the matters continued to arbitration. Directions were set for the filing of
evidence and submissions. A significant volume of material was filed with the Fair Work
Commission (FWC) to determine these matters. Whilst not all of the submissions and
evidence have been referred to, all have been considered in making this decision.
[3] These matters were not formally joined; however the circumstances of both dismissals
were subject to a single investigation process which arose out of largely the same facts. The
Applicants relied largely upon the same evidence and the parties agreed to have the matters
heard and determined simultaneously.
[4] At the hearing of these matters, both parties sought and were granted leave to have
legal counsel represent them. Mr R Reitano appeared for the Applicants. Ms S Zeitz appeared
for Nyrstar.
[2014] FWC 5072 [Note: An appeal pursuant to s.604 (C2014/6727,
C2014/6729) was lodged against this decision and the order arising from
this decision - refer to Full Bench decision dated 27 February2015 [[2015]
FWCFB 888] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB888.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB888.htm
https://www.fwc.gov.au/documents/awardsandorders/html/pr556256.htm
[2014] FWC 5072
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[5] Nyrstar raised a matter of apprehended bias against me hearing the applications. I
took submissions from Ms Zeitz on these matters and allowed Mr Reitano to make a number
of observations by submission relating to the High Court of Australia decision in Re Media
Entertainment Arts Alliance and Theatre Managers’ Association; Ex parte Hoyts Corporation
Pty Ltd (1994) 119 ALR 206 (Polites) on which Nyrstar relied. After considering the
submissions and all relevant authorities I ruled, on transcript,2 that there was no basis to the
existence of an apprehension of bias in these matters and, there was no impediment to me
hearing and determining the applications, the matters proceeded.
[6] Nyrstar requested part of the evidence of one witness be made confidential, pursuant
to s.593(3)(d) and s.594(1) of the Act. I issued an order to effect confidentiality and non-
disclosure of this evidence on 3 July 2014.
Background
[7] The background to this matter was borne out in the evidence and is set out below to
provide the context of these applications.
[8] Nyrstar is a global company in the mining and mineral processing industry, having
purchased the Risdon Smelter from the previous owner Zinifex in September 2006. The
Nyrstar Risdon Smelter workforce contains approximately 480 employees and 120
contractors.
[9] Mr Cannan, aged 50 years, and Mr Fuller, aged 57 years, commenced employment
with Nyrstar in 1995 as Operators within the Casting Department. At the time of termination
they were Grade 6 Operators under the Nyrstar Hobart Production Enterprise Agreement 2010
[2010] (the EBA).3 Between 1998 and 2001 Mr Fuller had been employed as a Leading
Hand, a position he stood down from after the death of his father.
[10] Other than two incidents involving Mr Fuller in 2002 and 2006 involving a contractor,
and an incident in the early 2000’s when Mr Cannan was ‘coached’ over the taking of sick
leave, neither Mr Cannan nor Mr Fuller have been the subject of formal disciplinary action by
Nyrstar for performance or behavioural issues.
[11] The Casting Department operates under a rotating shift roster arrangement of four
panels known as A, B, C and D and work a 4 day on, 4 day off rotation. Each panel works
two 12 hour day shifts followed by two 12 hour night shifts, with both early and late starters
for each shift. Mr Cannan and Mr Fuller have worked all their time at Nyrstar on D-panel. At
the time of their termination they were late starters. There are pre-start (safety) meetings at the
commencement of each shift which require separate pre-start meetings for the early starters
and the late starters.
[12] Around mid-December 2012 Mr Joshua Fraraccio was appointed to the position of
Team Leader of D-panel in the Casting Department. The role of the Team Leader changed at
that time from operational to non-operational in nature and no consultation took place with D-
panel about the change to the role.4
[13] Between late January and May 2013, a number of industrial and safety disputes were
raised by employees from D-panel.
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[14] Following a meeting between Mr Fraraccio and Mr Fuller which occurred on 17 April
2013 at which Mr Cannan was present, the issue of bullying by Mr Fraraccio was raised with
Nyrstar management.
[15] On 30 May 2013 Nyrstar appointed Mr David Farmer to undertake an investigation of
the bullying allegations made against Mr Fraraccio. Mr Farmer held interviews and took
statements from a number of employees, including the Applicants (the first investigation). Six
D-panel employees made statements relating to Mr Fraraccio’s behaviour. In late July 2013,
Nyrstar determined that the actions of Mr Fraraccio were reasonable administrative actions
and were not bullying.
[16] Following that determination, and as a result of the information gathered, Nyrstar
instructed Mr Farmer to take statements from other employees and to take further statements
from some employees previously interviewed. Twelve additional statements were taken by
Mr Farmer (the 12 statements) and provided to Nyrstar on 4 September 2013.
[17] On 13 August 2013 Nyrstar held a meeting with the six employees from D-panel who
had made statements in the first investigation and advised them that as a result of that
investigation, information had come to hand relating to them displaying behaviour which
could be considered bullying. Nyrstar suspended the six employees on full pay pending an
investigation of the allegations they had bullied Mr Fraraccio.
[18] On 15 August 2013 the Construction, Forestry, Mining and Energy Union (the
CFMEU) notified a dispute to the FWC relating to the suspension of the six employees. The
dispute came before Commissioner Lee who conducted a conciliation conference and
recommended that retired industrial Commissioner Mr Jim Simmonds, who was suggested by
the CFMEU, conduct an investigation into the six employees. On approximately 30 August
2013 Mr Simmonds was appointed to undertake the investigation (the second investigation).
Mr Simmonds was provided with copies of the 12 statements taken by Mr Farmer.
[19] The 12 statements were never provided to Mr Cannan, Mr Fuller or the CFMEU.
[20] On 20 September 2013 Mr Cannan and Mr Fuller, with union representation, were
interviewed by Mr Simmonds. They both provided information on the matters put to them. Mr
Tim Wilson-Haffenden, Human Resources Manager for Nyrstar, received Mr Simmonds
findings on 27 September 2013.5
[21] Nyrstar wrote to Mr Cannan and Mr Fuller on 7 October 2013 (the ‘show cause’
letters) asking them to ‘show cause’ why their employment should not be terminated, and
advised of Mr Simmonds’ findings.
[22] Mr Cannan, along with Mr Marshall Reeves and Ms Shelley Shay of the CFMEU,
attended his ‘show cause’ meeting on 17 October 2013. Mr Wilson-Haffenden and Mr Roger
Curtis represented Nyrstar. Mr Cannan raised concerns about the investigation and findings
by Mr Simmonds and gave his response to those findings. Mr Cannan’s employment was
terminated by Nyrstar on 23 October 2013.
[23] Mr Fuller, along with Mr Reeves and Ms Shay of the CFMEU, attended his ‘show
cause’ meeting on 23 October 2013, where he responded to the findings of Mr Simmonds. On
29 October 2013 Nyrstar terminated Mr Fuller’s employment. Both Applicants’ letters of
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termination state they were dismissed due to “serious misconduct in that you bullied and
harassed fellow employees and have shown to have had a number of instances of
inappropriate conduct”.6
The Evidence
[24] Witness statements for the Applicants were provided by:
Mr Marshall Robert Reeves,7 Organiser with the CFMEU
Mr Noel Anthony Cannan,8 an applicant in these matters
Mr Kevin Milton Fuller,9 an applicant in these matters
Mr Gardener Stuart Cox,10 Operator, Electrolysis Department, Nyrstar
[25] Witness statements for Nyrstar were provided by:
Ms Victoria Newton,11 Human Resources Superintendent, Nyrstar
Mr Timothy Andrew Wilson-Haffenden,12 Human Resources Manager, Nyrstar
Mr Craig Geoffrey Wells,13 former Casting and Electrolysis Superintendent, Nyrstar.
By the hearing Mr Wells was no longer an employee of Nyrstar
Mr Joshua Fraraccio,14 Team Leader of Casting D-panel, Nyrstar. By the hearing Mr
Fraraccio had resigned his employment
Mr William Mervyn James Hinds,15 Team Leader of Casting C-panel, Nyrstar
Mr Kerry John Seabourne,16 Process Leader of Casting, A-panel, Nyrstar
Mr Steven Malcolm Phillips,17 Operator in Casting C-panel, Nyrstar
Mr Cade Blake Terry,18 relief Production Coordinator of Casting, Nyrstar
Mr Adrian Paul Mudge,19 Operations Coordinator of Roast Acid Department,
Nyrstar
Mr Ricky Donald Schultz,20 Operator in Casting D-panel, Nyrstar
Mr David King,21 Team Leader of Casting B-panel, Nyrstar
Mr Stuart James Moore,22 Operator in Casting D-panel, Nyrstar
Ms Alexandra Williams,23 Safety Adviser, Nyrstar
Mr Grant Denis Seward,24 Team Leader of Electrolysis, Nyrstar
Mr Terence Allan Hinds,25 support to Team and Process Leaders in Casting, Nyrstar
Mr Craig Rainbird,26 Production Coordinator in Casting, Nyrstar.
[26] Many of Nyrstar’s witnesses attested to historical conduct of the Applicants, from
1999 to 2009. Considerable additional documentation was provided for consideration,
including audio recordings of some of the interviews undertaken by Mr Simmonds. The
matter involved over 1700 pages of witness statements and seven hearing days.
Pre-Start meetings
[27] All Nyrstar witnesses described D-panel pre-start meetings as negative, difficult and
confronting with D-panel members raising the same issues repetitively; and that they did so in
front of Senior Nyrstar managers as a way of embarrassing or undermining their Team
Leaders. Mr Seabourne said the group behaviour of D-panel in pre-start meetings was
intimidating and offensive, but that individually they were fine to get along with. Ms
Williams who attended pre-start meetings about twice a month described Messrs Cox,
Roberts, Cannan and Fuller as shaking their heads and rolling their eyes during a meeting.
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“Those four people made it clear they did not like Fraraccio. I considered that they were
trying to push him to the edge by their demeanour in the pre-start meetings.”27
[28] In response, Mr Cannan, Mr Fuller and Mr Cox denied they undermined their Team
Leaders, stating that they had always been encouraged to raise safety issues; and that if these
matters were not addressed they had been told to continue to raise matters so they would
receive priority in the company’s reporting system (RIMS). It was Mr Cox’s unchallenged
evidence that their former General Manager, Mr Brett Fletcher, told them some years ago that
they should keep pursuing issues until they were fixed.28
[29] Mr Seabourne said that Mr Fuller would sometimes, in pre-start meetings, make
comments like “Dickheads can’t get nothing right. Everything’s frigged in this place”,29
because things weren’t being fixed.
[30] Mr Fraraccio said on 18 January 2013 in a pre-start meeting he questioned Mr Cannan
about what he had done the previous shift to ensure his own safety. He said Mr Cannan
moaned and hissed and said “What I always do. I do what I do. I just do my work and don’t
hurt myself”, had embarrassed him and was intended to intimidate and humiliate him.30 Mr
Fraraccio said he did not speak to Mr Cannan about this matter.31 Mr Cannan said that as his
shift on the previous day had been “one of the best shifts I had had for a very long time”32 he
did not know what to say and replied that he just did his work and didn’t hurt himself. Mr
Cannan said he does not know why Mr Fraraccio would have felt that way. Similarly, Mr
Cannan said he was not rude, intimidating or arrogant toward Mr Fraraccio in pre-start
meetings. He said that he did not intend to make Mr Fraraccio feel uncomfortable or
undermined. Also he said Mr Fraraccio never told him that he was rude or intimidating.33
[31] Mr Fraraccio conceded that whilst the issues brought up by D-panel were relevant,
some of them were outside of his control.34 Mr Terry also conceded that safety issues raised
by Mr Fuller at pre-start meetings were genuine;35 however he said he did not look forward to
attending these pre-start meetings as they were tense and unfriendly.36
[32] Mr Cannan and Mr Cox said the issue of the flues and smoke was raised several times
but they continued to raise the issue because they had ideas as to how improvements could be
made, such as manually cleaning the system, with a number of issues previously being
resolved by managers with higher authority. 37
[33] Mr Cox said that generally pre-start meetings for D-panel late starters took 15 to 20
minutes, and that it was not uncommon for multiple matters to be raised at one meeting as the
plant had a lot of issues.38 Nyrstar witnesses stated that D-panel pre-start meetings took longer
than other panels in Casting.
[34] Mr W Hinds said of Mr Fuller’s behaviour at pre-start meetings “Kevin tends to be a
bit animated, but they would be dealt with on the day.”39
[35] Mr Mudge described Mr Fuller as a spokesperson for the group and that Mr Cannan
could be very negative.40 Mr Phillips stated that he had not observed any bullying behaviour
by Mr Fuller or Mr Cannan toward Mr Fraraccio or anyone else in pre-start meetings or
otherwise and that if he had he would have immediately reported it. 41
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[36] Mr King said D-panel pre-start meetings were antagonistic to Team Leaders, although
under cross-examination he stated that he rarely went to the late start meetings with Mr
Cannan and Mr Fuller.42 He also said that workers were encouraged to raise matters at pre-
start meetings and he had no issue with the matters that were being raised by Mr Cannan and
Mr Fuller. However, he said that the way they raised issues was not respectful.
[37] Mr Seward said he did not feel intimidated by the Applicants and that he never told Mr
Cannan or Mr Fuller that they should not raise matters in pre-start meetings. He said after
expressing his displeasure at Mr Cannan’s use of the word “demand” in a pre-start meeting,
Mr Cannan never used the word again.43
[38] Mr Rainbird said it was appropriate for matters to be raised in the right way at these
meetings. However, he had never communicated to Mr Cannan or Mr Fuller that they should
not raise matters again or that they needed to have some understanding of Mr Rainbird’s
perspective. He also confirmed that he took no action to counsel Mr Fuller on the way he
spoke or swore in the workplace.44 Mr Cox said D-panel employees were never told by
management not to raise issues or to stop raising issues at pre-start meetings.
Workplace Disputes
[39] Mr Reeves said it was not unusual for him to become involved in disputes either at the
request of a delegate or management. Mr Rainbird was aware of the dispute settlement
procedure in the EBA stating if a matter was not resolved through discussion, managers
would refer the matter up the line to more senior managers, which included himself and Mr
Wells. Generally, witnesses on both sides understood that once a matter was in dispute, the
status quo would be maintained until the process was finalised.
Crib Breaks
[40] Crib breaks for D-panel was a long running dispute in the workplace. Mr Reeves
provided a history of crib breaks in Casting from 1994 stating that around 2006
Superintendent for Casting, Mr Craig Wells, introduced three crib breaks of forty minutes
each shift, in exchange for continuous running of the machines. He said that after making
recent enquiries of other panels in Casting this is the practice that continues to apply. Messrs
Cannan, Fuller and Cox all provided the same evidence as Mr Reeves as to the establishment
of three 40 minute crib breaks. Mr Wells denied Mr Reeves’ version of continuous running
and extended crib break arrangements stating that crib breaks for Casting included three 30
minute breaks plus 5 minutes walking time. Mr W Hinds confirmed that shift workers are
entitled to three 30 minute breaks with an additional 5 minutes walking per shift.45 However
under cross-examination, Mr W Hinds recanted his statement about D-panel taking 45
minutes for crib breaks and he confirmed in the mid-2000s the crib times had change by 5
minutes. 46
[41] Mr Wells confirmed that whilst the issue of crib breaks had been put into dispute on a
number of occasions, it had never progressed through the disputes settling procedure.47 Mr
Fuller advised he formally put the matter of crib breaks into dispute on 20 May 2013, 48 but
that Mr Fraraccio never escalated the matter for resolution. Messrs Fraraccio,49 Rainbird,
Wilson-Haffenden and Ms Newton were unable to say what had occurred about resolving that
dispute even though Ms Newton said she would normally ensure the process is handled as per
the disputes resolution procedure. Mr Fraraccio could not recall whether he passed the dispute
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notice to Mr Rainbird or Mr Wells and he could not recall whether he had further discussions
with his supervisors about it.
[42] Mr Fuller and Mr Cox said Mr Fraraccio wanted D-panel to take shorter crib breaks.
Mr Fuller stated Mr Fraraccio never said to him, or showed him, that the EBA allowed for
crib breaks that were different to the D-panel arrangements. Mr Cannan advised that Mr
Fraraccio did raise the issue of crib times “many times”,50 but he did not comply with Mr
Fraraccio’s requests because of the longer crib time arrangements. He said from time to time
other Team Leaders had raised the issue of crib times.
[43] Mr Fraraccio advised of his understanding of the shift roster crib break for D-panel
under Clause 3.6.2(ii) of the EBA which was, under cross-examination, identified as the crib
break arrangements for day workers which allowed only two crib breaks.51 He said however
that D-panel took three 45 minute crib breaks each shift. He confirmed Mr Fuller disagreed
with him and had advised him on a number of occasions that he would put the matter into
dispute if he persisted to tell them to shorten their crib breaks. Mr Fraraccio confirmed he had
a number of discussions with Mr Fuller and others about the matter, that he was aware there
was disagreement and that discussion was the only action he took on the matter.52 Mr
Rainbird said Mr Fraraccio discussed the matter with him, that Mr Fraraccio never did
anything about it and he didn’t tell Mr Fraraccio to do anything about it.
[44] Mr Fraraccio said he considered Mr Fuller was attempting to bully him when he swore
and was aggressive about placing the crib break matter into dispute.53
Manning Levels
[45] Mr Fuller said he raised a dispute in January 2013 with Mr Fraraccio over manning
levels. He said after discussing the matter further with Mr Rainbird, he conceded that he was
wrong and withdrew the dispute. Mr Rainbird confirmed meeting54 with Mr Cannan and Mr
Fuller about the matter and subsequently D-panel withdrew the dispute. Mr Fraraccio said Mr
Fuller would not accept his explanation on this matter, but accepted the same explanation
from Mr Rainbird, and that this was evidence of undermining behaviour.
SO2 Procedure
[46] Mr Reeves recalled being involved in a dispute concerning SO2 gas leaks which was
resolved in a meeting with Mr Rainbird and Mr Fraraccio. He was aware of a new procedure
developed in Casting for SO2 leaks, but he had had complaints from employees in A, B and C
panel who were concerned about being told to stay on the floor when the SO2 alarm was
sounding. He said D-panel decided, due to safety concerns, they were not going to work under
the new procedure, which involved wearing a personal monitor and to re-enter the area.
[47] Mr Fuller said he found the new procedure and Mr Fraraccio’s approach unacceptable
“… because the alarm was still going. He was suggesting to do that while the alarm was still
going. The cell room operators vacated that area when the alarms went off and never returned
to that area while those alarms were going and he was requesting us to enter that area despite
the alarm still going”.55
[48] Mr Cox denied that all issues with the new procedure were resolved with the other
panels in Casting and he said that D-panel had genuine issues with the new procedure.
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[49] Mr Rainbird said as a result of D-panel stopping work in February 2013, he discussed
the safety concerns some members of D-panel had and issued a direction that, until further
notice, the Casting floor must evacuate when the alarms were sounding. As part of those
discussions, Mr Rainbird said he was to gather more data on the matter and involve the union
occupational safety person in a final resolution. At the time of hearing, it was confirmed this
direction as still in place.
Block Jackets
[50] Mr Cannan and Mr Fuller were involved in the risk assessment for block jackets,
which are protective clothing used when Operators are making zinc blocks. Mr Cannan said
there was an issue of hygiene relating to the use of soiled jackets with Mr Cox confirming
block jackets were not always laundered and that he had had to wear jackets that were dirty.
Mr Cannan said D-panel suggested employees be issued with their own jackets and that the
additional block jackets arrived in July 2013 just before he went on leave and was
subsequently stood down. Mr Fuller’s evidence on this point was supportive of Mr Cannan’s
evidence. Mr Cox said more block jackets had been ordered, however not enough for each
individual and that there was frustration around the length of time it took to get additional
block jackets. He denied there was any aggression in the way the matter was raised at pre-start
meetings but that frustration may have manifested in Mr Cannan and Mr Fuller swearing and
shaking their heads.
[51] Mr Rainbird confirmed that an additional 20 block jackets were ordered to deal with
the problem D-panel had with block jackets and that many of the new jackets had not been
used. He said at some stage in 2013 there had been a cyclic downturn in the making of zinc
blocks, but he could not recall the exact date.56 Mr Rainbird said that they regularly made
dross blocks to recycle back into their production, but after a further risk assessment, they
now do not use block jackets.57
Rotations
[52] Mr Cannan said D-panel rotated the jobs they performed because this was a safer way
to work as you did not get stuck doing the one job which could involve heavy manual labour.
He said this position had been backed up by occupation consultants who had been to the
workplace. Mr Cannan confirmed that Mr Fraraccio wanted no rotation of jobs and D-panel
members objected to this on the basis of repetition and the nature of the work.58 Mr Fuller
said that rotations on D-panel entailed working on the machines for a full shift, but for other
duties such as front forks, the mixer, the furnaces, the feed floor and the block line, those
duties were rotated around after a crib break.59 Most of the previous Team Leaders of D-panel
gave evidence describing D-panel’s position on rotation of jobs as inflexible and negative.
[53] It was Mr Rainbird’s evidence that Mr Fraraccio is not confrontational, is calm,
balanced and very considered and that D-panel’s approach demonstrated a negative attitude. 60
He said despite management efforts, they had not been able to get D-panel to lessen rotation
of jobs or shorten crib breaks.
D-panel Conduct
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[54] Mr Fraraccio said whenever he raised efficiency matters Operators on D-panel would
be argumentative and confrontational.61 He described getting anxious and would “feel sick”62
about pre-start meetings when he knew that Mr Fuller, Mr Cannan and another Operator, Mr
Roberts, were going to be there. He said he felt any response he gave them would be
unsatisfactory, describing the block jackets issue and the non-use of new jackets once they
had arrived.
[55] Mr Cox confirmed that Mr Cannan and Mr Fuller would sometimes take the lead on
issues for D-panel. He said that it appeared that Mr Fraraccio had a dislike for certain people
and favoured others and this led to the bullying allegations. He said that if former Team
Leaders believed D-panel employees were rude or confrontational, “they made no effort to
enlighten us as to that”.63 He also said that he did not believe employees on D-panel had
behaved this way; stating that matters were put into dispute for good reason and employees
did not plan what to bring up at pre-start meetings.64 He also denied that D-panel was critical
of the company or their Team Leaders.
[56] Under cross-examination, Mr Phillips recanted a number of observations he made
about the behaviour of Mr Cannan, Mr Fuller and D-panel in general in the statement he made
to Mr Farmer in August 2013,65 which was one of the 12 statements. He said the issue of D-
panel ringing alarms had been taken up with Mr Rainbird and Mr Wells, but nothing had been
done about it.66
[57] Mr W Hinds’, Mr T Hinds’, Mr King’s and Mr Seabourne’s evidence was that D-panel
were resistant to change; rang the help alarms more frequently than other panels; did not
trouble shoot problems; and that pre-start meetings were unpleasant. Mr Seabourne said he
felt pre-start meetings were scripted, that D-panel would not take management responses on
board and he would spend the last of his days off worrying about the pre-start meeting the
next day which made him tired and grumpy and effected his health. Mr T Hinds said during
his time as Team Leader there were 23 members of D-panel which included Mr Cannan and
Mr Fuller; that he found working on D-panel very difficult and he became tired and tense and
he dreaded going to work. He said as a group, their behaviour made him feel like he was
being attacked.
[58] Mr Schultz described D-panel using the help alarms as a ‘bullying tactic’.67 Mr Terry
said individual Operators on D-panel, including Mr Cannan and Mr Fuller, could be
intimidating and this reduced the number of inspection walk-throughs he did when D-panel
were working.68
[59] It was Mr Mudge’s evidence that D-panel was “known as “the burn-out crew” because
the perception was that they gradually wore down their Team Leaders and Leadership
Group.”69 He said one on one the individuals on D-panel were easy to get on with. As a
group, they were very hard to deal with and that working with D-panel made him feel on
edge, with him expecting something negative to happen.
[60] Mr Rainbird said that whilst he had no data on the issue, D-panel seemed to ring help
alarms more often than other panels.
Cannan’s Conduct
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[61] Mr Fraraccio described Mr Cannan’s usual greeting at work as “Good as you can be
here I guess” and that he would screw his face up and grunt in pre-start meetings when Mr
Cannan disagreed with something he said. Mr Cannan rejected the assertion that he would
greet Mr Fraraccio in this way, but would say, his days off had not been long enough.
[62] Mr Cannan recalled the meeting when Mr Fraraccio was introduced as the new Team
Leader in which D-panel members were told that his role was not to operate machinery or
work on the floor, but to deal with career paths, holidays and people management. Mr Cannan
stated he was not confrontational or unpleasant in his dealings with Mr Fraraccio or ever
‘gang up’ on him. However he said that he did challenge Mr Fraraccio on matters which he
disagreed with him about. He said he never needed to swear when he was discussing issues
and that no previous Team Leader had ever taken exception to swearing in the workplace.
[63] Mr T Hinds specifically described an event involving Mr Cannan and his repeated
pressing of the help alarm (about every 5 seconds) when operating the CM4 machine when
Mr Cannan could not locate a problem with the machine. He said that action was agitating,
that he discussed the matter with Mr Cannan at the time and to his knowledge Mr Cannan did
not repeat the behaviour. 70 Mr Terry confirmed he had no dealings with Mr Cannan other
than at pre-start meetings.71
[64] It was Mr Cannan’s evidence that he had nothing to do with any issue involving Mr
Peter McCullum and the rotation of jobs.
[65] Mr Fraraccio said Mr Cannan had been unreasonable over an incident on 27 February
2013 involving the HF2 machine and safety barrier tape, wherein he advised Mr Cannan
should have been more pro-active about fixing the safety matter rather than just reporting it.
He said following a discussion with Mr Cannan about this, Mr Cannan had yelled at him
“You’re bloody joking”.72 Mr Cannan confirmed the issue involved barrier tape around
machine HF2, that the wrong tape had been used, and that he spoke with Mr Fraraccio and
helped him install black and yellow tape. Subsequently Mr Cannan noticed that some of the
tape had been removed so he informed the crane operator, thinking the crane operator would
deal with it. He also spoke to the Team Captain and Mr Fraraccio about the matter. Mr
Cannan said after, in the discussion with Mr Fraraccio, he had disagreed with Mr Fraraccio’s
position that he (Mr Cannan) should have put the tape up and that he may well have said
“you’re joking”.73 He said Mr Cox was present during the conversation with Mr Fraraccio and
could attest that Mr Cannan did not behave as described by Mr Fraraccio.
[66] Mr Cox confirmed he witnessed the discussion between Mr Cannan and Mr Fraraccio
in the control room and that both Mr Fraraccio and Mr Cannan were “forthright in their
respective positions”74 but neither lost their temper, raised their voice, used swear words,
huffed, snarled or were aggressive. He confirmed that Mr Fraraccio informed Mr Cannan he
should have done more than he did to rectify the safety hazard and Mr Cannan responded that
he had done all he could to deal with the hazard.
[67] Mr Cannan confirmed that he did approach Mr Fraraccio on 31 March 2013 about a
back feed issue with the furnaces in Casting and that he said he thought it was a problem
caused by the leadership group. Mr Cannan admitted he was angry at the time but denied
engaging in an outburst. He said the noise of the plant operating requires him to wear ear
plugs and it was likely he did speak loudly. He said he followed Mr Fraraccio’s advice and
went and spoke with Mr King and the matter was dealt with. Mr Fraraccio’s evidence relating
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to the event accorded largely with Mr Cannan’s evidence although he indicated Mr Cannan
had ranted rather than dealing with the issue constructively.
[68] Mr Cannan confirmed Mr Fraraccio had, on one shift, asked him to clean up an oil
spill from a fork lift, but denied there was any dispute over the matter. He said whilst
someone not allocated to a role would have been best placed to deal with the oil, he had
cleaned it up when asked. Mr Fraraccio indicated Mr Cannan had been argumentative.
[69] Mr King described being belittled by Mr Cannan at a pre-start meeting on 10 April
2013, referring to Mr Cannan making comment of “getting a proper Process Leader”. He said
despite him discussing the matter with Mr Cannan later, Mr Cannan did not apologise to him.
He could not recall another example of where he had been belittled by Mr Cannan or Mr
Fuller.75Mr Cannan agreed he made the comment during a pre-start meeting regarding Mr
King that “It would be good to get a proper process leader back”.76 He said he told Mr King
afterwards that he meant nothing personal by the comments and that Mr King did not indicate
to him that he felt belittled
[70] Mr Cannan recalled a discussion on 29 June 2013 with Mr Phillips involving CM2
machine and the messy state it was left in at the handover of D-panel’s previous shift. Mr
Cannan advised he had been moved off that machine about one hour into his shift as CM2 had
malfunctioned and that he had been told to work on B Scales. He said he had explained that
situation to Mr Phillips and that he had told the Team Captain, Mr Mark Adams, on many
occasions about the slabs accumulating under CM2. Mr Cannan said he challenged Mr
Phillips’ version of events because he had not been responsible for that machine. Mr Phillips
said he did not report a matter involving the melters where Mr Cannan replied to him saying
he would ‘fucking fix it’, and that he took no action on that matter.77
[71] Mr Phillips explained that when he described the Applicants as being ‘negative’ he
meant to describe them as not agreeing with changes to crib times and rotations, and that on
occasion Mr Cannan would say the company were trying to ‘screw’ them or ‘fuck’ them.
[72] Mr W Hinds described an incident between himself and Mr Cannan, which occurred
sometime between 2000 and 2004, alleging Mr Cannan ran at him in an attempt to hit him. He
said the matter was reported to the then Superintendent, Mr Rob Tyson and he confirmed that
Mr Tyson had dealt with the matter.78 Mr Cannan’s evidence was that he did have a
disagreement with Mr W Hinds in relation to the handling of hot product when Mr W Hinds
called him a “pussy”79 because he could not hold his hand on the hot product. He said he told
Mr W Hinds he would never be a Team Leader and that it was after that that Mr W Hinds
made the allegation that Mr Cannan had charged at him and stopped short. Mr Cannan said
Mr W Hinds’ version of events later changed and that when Mr Tyson and then Team Leader
Mr Michael Fletcher looked into the matter no further action was taken. Mr Cannan said he
was not aware if Mr W Hinds was spoken to about his behaviour at that time.
[73] Mr Cannan said over the years issues had arisen about the role of contractors at the
Nyrstar site, but he denied ever telling Mr Schultz not to help, or not to seek help, from
contractors.
[74] Mr Cannan said that Mr Fraraccio conducted a performance review with him on 15
July 2013 and discussed the way he should raise safety hazards. He said Mr Fraraccio never
mentioned raising safety issues to him prior to that date.
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[75] Mr Cannan said that at no time did Mr Fraraccio, or anyone else, tell him that he rang
the help alarms too much. Mr Cannan said it was incorrect to say he never undertook trouble
shooting with plant80 and that the first complaints he heard about him sounding the sirens was
after he was stood down on 13 August 2013. Mr Cannan denied ever using the phrase ‘these
muppets’ or ‘they have fucked that up again’.
[76] Mr Cannan said Mr Fraraccio never had a discussion with him about changing his
attitude or behaviour, although he did recall a conversation with Mr Fraraccio about his
method of delivery when raising concerns, but Mr Fraraccio had never stressed the point to
him. He said he was never the subject of disciplinary action regarding the matters raised in Mr
Fraraccio’s statement and that he was never subject to any counselling or warning about his
behaviour or performance81 at work. He also said there was no ongoing problem with D-
panel’s production figures.82
[77] Mr Cannan said no-one ever told him that it was awful or horrible to work in D-panel
and the first time he was aware that anything like this had been said was when he saw the 12
statements disclosed in these proceedings. He said he used to give his previous Team Leader,
Mr Seward a ride home from work.83
Fuller’s Conduct
[78] Mr Fuller said whilst he was generally known to swear, swearing was common within
the workplace.
[79] Mr Fraraccio described Mr Fuller’s usual greeting was “Good until I fucking came
here” or “Better before I got here”. He said his foul language and aggressive or rude tone
made him feel uncomfortable.84 Mr Fuller denied greeting Mr Fraraccio negatively, but said
that he could have said this jokingly once or twice “good until I fucking come here”.85 Mr
Fuller said he did say things like ‘I see it ran well while I’ve been gone’ or ‘they’ve fucked it
again’, due to his frustration with the problems encountered with the plant, but he denied
being aggressive or rude.
[80] It was Mr Fuller’s evidence that he generally got on well with his previous Team
Leader, Mr Seward and other employees and managers, although occasionally he did have
disagreements.
[81] Mr Fuller said he only placed matters into dispute that required action and only on
three occasions when Mr Fraraccio was Team Leader. Mr Fuller confirmed that training of
contractors had been a matter of dispute in the workplace previously and that the matter had
been resolved through the Commission with a recommendation of the company consulting
with its employees over the issue. Mr Fuller recalled an incident with a contractor, Mr Dean
Herring where Mr Fuller was unaware that Mr Herring had been trained on the operation of
the MF1 arrester feed button and had stopped Mr Herring from performing that duty. He was
subsequently advised by Mr Schultz that Mr Herring had been appropriately trained.
[82] In relation to the issue of excessive smoke in Casting, Mr Fraraccio said he had had to
coach Mr Fuller and another Operator about opening dampers and that Mr Fuller would
always raise the issue of the flues in the plant and that he was deliberately smoking the place
out, because he opposed the flue system being made manual. Mr Fraraccio said Mr Fuller was
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an experienced Operator and that he should not have been having these issues when operating
a furnace. Mr Fuller said the flue issue arose regularly which involved fumes being released
into the area where the furnaces were and denied that he misused the dampers. He said that he
used the required amount of chloride, that he worked in accordance with his training and that
the flues were not his sole responsibility.
[83] Mr Fraraccio described an incident, of which he had made a file note,86 involving
another Operator, Mr McCullum. Mr Fraraccio said he saw Mr Fuller bully Mr McCullum
into not performing the feed floor role for an entire shift. Mr Fraraccio said he had approached
Mr McCullum about not rotating the feed floor job for one shift; that Mr McCullum had
agreed; and that he later observed Mr Fuller talking with Mr McCullum in an animated way
and heard Mr McCullum say “OK, OK, we can rotate it then”.87 It was Mr Fraraccio’s
evidence that the events were also witnessed by former Production Coordinator, Mr Rose. Mr
Fuller confirmed he did speak to Mr McCullum about other workers generally regarding all
tasks in Casting as ‘rotational’, but said he told Mr McCullum that if he was happy to work on
the feed floor all day, it was up to him. Mr Fuller denied bullying or intimidating Mr
McCullum on that day or any other day. Mr Fraraccio said he now understood that Mr Rose
was not able to confirm his version of events and that Mr McCullum had said he was not
bullied.88
[84] Mr Fuller said he did not constantly ring alarms or do so without troubleshooting
problems. He said he was encouraged to ring the alarm the by the Team Captain when he
needed help, that he only did this when necessary and he had never been told not to do this.
He said the first he knew about there being a problem with D-panel ringing alarms too much
was when he read the statements of previous Team Leaders relating to these proceedings. He
said he always trouble shot his machinery and only called for help as a last resort and he
denied ever saying that it was not his job to trouble shoot problems.
[85] Mr King gave evidence relating to an incident between Mr Fuller and a contractor Mr
Steven Dodge. He confirmed under cross-examination that he was not present when Mr Fuller
had the conversation with Mr Dodge and he could not recall the specifics of any conversation
in the office between Mr Fuller and Mr Fraraccio.89 Mr King’s evidence about this matter in
his statement was, in light of his cross-examination, unsatisfactory. Mr Fuller admitted he did
have a run in with Mr Dodge, in February 2013. He said he was frustrated with Mr Dodge’s
performance of unloading bundles without putting stickers on them. This was despite Mr
Dodge having been told on a number of occasions what was required. Mr Fuller denied
calling Mr Dodge a ‘fucking idiot’ or swearing at him, but admitted that he did swear in his
presence. In a meeting with Mr Fraraccio and Mr Ackerley, in which Mr Fraraccio advised
the behaviour was inappropriate, Mr Fuller confirmed he did say that he spoke to “men as
men” and that he also asked Mr Fraraccio whether he should “stop at the gate and put a dress
on”.90 He said he realised “in the cold light of day that [it] was a mistake”91 to have sworn,
that Mr Fraraccio explained the Nyrstar Code of Business Conduct which requires employees
to act with “respect, dignity, fairness and courtesy”. 92 Mr Fuller offered to apologise to Mr
Dodge for his swearing, however, Mr Fraraccio said that was not necessary.
[86] In relation to this incident, Mr Rainbird confirmed that at a meeting he had with Mr
Fuller over the incident, no one had suggested that Mr Fuller had called Mr Dodge a “fucking
idiot”.93
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[87] Mr Fuller denied that D-panel production was a problem, stating that the production
graph in the monitoring room showed their production was up with the rest of the panels.94
[88] Other than an incident in 2002 which involved him writing inappropriate words on a
check sheet, Mr Fuller said he was never formally disciplined or counselled for anything at
work, but said he was never warned about any of the matters referred to in any of the witness
statements provided by Nyrstar. Under cross-examination, Mr Fuller denied seeing a
progressive discipline report of 5 July 200695 on his employment file shortly after he was
suspended from duty. Mr Fuller said he did not recall this incident, which involved him
speaking to two contractors in a degrading manner.96
[89] Mr Fuller said he was accompanied by Mr Cannan to a ‘formal’ meeting with Mr
Fraraccio on 17 April 2013. He denied that Mr Fraraccio described to him an increase in
unacceptable behaviour, saying that Mr Fraraccio opened the meeting with “Aren’t you happy
here. Do you want to leave here?”97 Mr Fuller said he explained to Mr Fraraccio that he was
happy and that he did not wish to leave Nyrstar, however Mr Fraraccio kept asking him did he
want an exit package. Mr Fuller said that whilst Mr Fraraccio told him he wanted to see an
improvement in his behaviour; Mr Fraraccio never told him that his employment was on the
line.98 Mr Fuller said he stopped swearing and bringing matters up in the pre-start meetings,
which was reflected in his last performance appraisal99 conducted by Mr Fraraccio. Mr
Fraraccio said this meeting was one of two formal discussions with Mr Fuller about his
behaviour and attitude, with the other meeting being held on 5 February 2013.100 Mr Fraraccio
said Mr Fuller did not acknowledge any wrongdoing and that his attitude did not change.
[90] Mr Fuller said he, together with Mr Seward, conducted a risk assessment on the
replacement of the stairs to HF1 machine. Following that risk assessment, Mr Mick Hinds, the
superintendent, assured D-panel that the stairs would be put back and that he continued to
raise the issue at pre-start meetings and with management because the stairs had not been
replaced.
[91] Mr W Hinds said Mr Fuller ‘invaded his body space’101 which he said was dealt with
by the then Team Leader, Mr Paynter.
[92] Mr Fraraccio said he felt disrespected when Mr Fuller told him to weigh product on B
scales. Mr King said he was present when Mr Fuller made that comment to Mr Fraraccio; that
it was not the job of a Team Leader; and that it was not what Mr Fuller said, but more the way
in which he said it. Mr Fuller denied that he was being disrespectful to Mr Fraraccio on the
occasion he suggested he weigh product on the B scales as the shift was very busy and other
Team Leaders had carried out this role on high volume shifts.
[93] Mr Fuller said he was not made aware by Mr Phillips of any loss of process time due
to him being in the showers early on one shift and Mr Phillips conceded in his oral evidence
that the incident described in his written statement102 involving Mr Fuller leaving early for a
shower was not a “major issue”.103 Mr Phillips also stated that other than the contractor
training dispute in August 2013 with Mr Fuller, he never witnessed any outbursts from Mr
Cannan and Mr Fuller in meetings.
[94] Mr T Hinds described Mr Fuller referring to Process Coordinators in discussions with
him as “proper cunts”.104 Mr T Hinds said in cross-examination that he did not consider this
matter serious enough to warrant any action and that swearing was part of the male dominated
[2014] FWC 5072
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work environment. Mr Fuller denied ever referring to Production Coordinators as described
by Mr T Hinds, stating that he was once a Production Coordinator himself. He also denied
ever telling Mr Schultz that he was not to help contractors or to seek help from them.
[95] Mr Fuller said he had two formal discussions with Mr Fraraccio about a need to
change his behaviour. Mr Fuller also recalled Mr Fraraccio saying that the workplace should
be an enjoyable place to be and that the culture of D-panel was negative and required
improvement.105
[96] Under cross-examination, Mr Fraraccio stated he never told Mr Fuller “word for
word” that he was performance managing him, but that he would “coach the guys in the
moment when there was issues [sic] arose”. 106 He never formally disciplined any member of
D-panel.
[97] The following exchange took place under cross-examination with Mr Fraraccio:
“Do you say that it never got to the level where you considered any of these issues
needed to be escalated to formal disciplinary action?---Potentially no. I didn’t feel that
good about coming to work a lot of the time and, at some stage, yes, absolutely, it
probably should have gone to the next level.
And you never took it to that level?---No.
Ever? Correct?---Formally like this, no.
…
Looking back in hindsight, I think there was probably a lot of opportunities missed in
regards to disciplining people. Progressively disciplining them or I guess formally
disciplining them probably would’ve been a fair thing to do…”107
[98] It was Mr Fuller’s evidence that Mr Fraraccio never told him at any stage that he
considered conversations with Mr Fuller to be confronting or uncomfortable. Mr Fuller
denied ever pulling facial expressions or adopting an aggressive tone.
Performance Reviews
[99] Mr Wilson-Haffenden highlighted comments that had been made in Mr Fuller’s
performance reviews from 2005 through to 2013 mostly related to his personal approach in
meetings and a requirement for him to be more positive and less disruptive.108
[100] Mr Fraraccio said he conducted a performance review on Mr Cannan on 15 July 2013,
scoring him as satisfying all the performance criteria; that he had a conversation with Mr
Cannan around his opportunities to improve; and that there was no mention in this review
about him using derogatory terms when speaking. 109 Likewise, Mr Fraraccio confirmed that
for his review of Mr Fuller on 15 July 2013 he scored Mr Fuller as satisfying all of the
performance criteria except for one which related to the way he spoke. Again he provided
comments on the document and gave feedback to Mr Fuller. 110 Mr Fuller denied he was not
interested in feedback from Mr Fraraccio, stating that the feedback process was interrupted
when he was required to resolve a work matter ‘upstairs’ and not being able to return to the
meeting.
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[101] Mr Schultz said Mr Fletcher had completed performance reviews on the Applicants in
2006/07. Despite his written statement, under cross-examination, Mr Schultz confirmed that
the performance reviews of Mr Cannan and Mr Fuller had recorded them as satisfactory
employees.111 Whilst Mr Schultz sought to interpret the meaning of words written in
performance reviews of Mr Cannan and Mr Fuller conducted by the then Team Leader, Mr
Fletcher, the words used by Mr Fletcher were clear and unambiguous. I am not inclined to
accept Mr Schultz’s evidence on this point as nothing indicated Mr Schultz’s interpretation
should be preferred.112 He said when he was Team Leader, he provided review comments to
the Applicants about using the Nyrstar Way, and that they dealt with people in a negative and
confrontational way.
[102] Mr Cannan recalled his performance appraisal meeting with Mr Schultz when the use
of the Nyrstar Way of dealing with issues was mentioned. He said he was never told in any
performance appraisal process or at any other time, that the way he conducted himself was
unsatisfactory.113
[103] Mr Seward said whilst he was Team Leader at D-panel he scored Mr Fuller a
satisfactory rating of 10 for most of the criteria, that he had demonstrated performance above
the standard in the ‘safety’ and ‘skills in coaching others’ criteria and that he addressed some
concerns he had with Mr Fuller’s behaviour in the improvement/development section of the
review asking him to be more positive, less swearing and to use the Nyrstar Way.114 He also
said that Mr Fuller took pride in his performance and cared about his work. Mr Seward scored
Mr Cannan satisfactorily for all criteria and above the standard for the safety criteria; whilst
advising Mr Cannan in the ‘improvement/development’ section of the review, to use the
Nyrstar Way when communicating and to be realistic about what could be achieved with
workplace issues. Mr Seward confirmed that if he had reason to take disciplinary action, he
would have done so.
[104] As for performance reviews conducted at Nyrstar, Mr Rainbird said the process
needed to be transparent and employees should not be misled, for good or bad, on their
performance at work. He said any conversation with the employee should reflect the review
document. He said he encouraged Team Leaders to be positive and look for areas of
improvement;115 that there was still room for improvement when an employee was marked as
satisfactory; and that he was not privy to the conversations held between the Team Leaders
and the Applicants.116
Investigations & Procedural Fairness
The First Investigation
[105] Messrs Reeves, Cannan and Fuller and Ms Newton gave substantially similar evidence
as to the initial raising of allegations of bullying by Mr Fraraccio at a meeting on 1 May 2013.
Ms Newton requested further details of the allegations and Mr Reeves advised her on 9 May
2013 there were more complaints to come. Mr Reeves and Ms Newton confirmed the
CFMEU suggested using Mr Farmer to undertake the investigation; that Nyrstar had agreed
and that Mr Farmer interviewed six D-panel employees and a number of managers, between 2
June and 15 July 2013. Ms Newton confirmed that Mr Fraraccio was provided copies of all of
these statements prior to his interview with Mr Farmer.117
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[106] Mr Farmer was engaged by Nyrstar on 30 May 2013 with Mr Wilson-Haffenden
saying findings were then to be made by him on the basis of the statements obtained by Mr
Farmer.118 Ms Newton said she provided Mr Farmer with copies of Nyrstar’s Performance
Improvement and Discipline Policy, Fair Treatment and Dispute Resolution Policy and the
Risdon Smelter site’s Anti-Discrimination Policy. 119
[107] Ms Newton said that by 26 July 2013 she had received the statements from Mr Farmer
and prepared a supporting document summarising the complaints and concerns of D-panel,
and that on that day she met with Messrs Wilson-Haffenden, Wells and Rainbird, wherein
they concluded that Mr Fraraccio had taken “legitimate and reasonable management actions
carried out in a fair and reasonable manner”.120 On the evidence of Ms Newton and Mr
Wilson-Haffenden the following then took place:
Nyrstar decided the six employees’ (Messrs Fuller, Cannan, Roberts, Wilson, Rogers
and Cox) behaviours may not be not consistent with the values of Nyrstar and the
Code of Business Conduct121 and they should be suspended122 pending an
investigation;
A meeting to inform the employees of this on 5 August 2013 was abandoned due to
unprotected industrial action by D-panel and rescheduled;
On 13 August 2013 a meeting was held and the six employees (less Mr Cannan, who
was on leave) were advised by Ms Newton of the outcomes of the first investigation
and were advised of their stand down and investigation for behaviour toward their
Team Leader.123
Ms Newton also advised the company would be speaking with a number of other
parties, that they would be provided with specific allegations and given an
opportunity to respond. Mr Cannan was advised similarly on 15 August 2013 and all
employees were provided with a letter at the meeting advising of Nyrstar’s
concerns.124
[108] On 8 August 2013 Nyrstar instructed Mr Farmer to interview other employees who
had historically been involved with D-panel. An additional eight employees, together with
Messrs Fraraccio, Rainbird, Phillips and Wells were interviewed.
The FWC Recommendations
[109] Mr Wilson-Haffenden said subsequent to the standing down, the CFMEU notified a
dispute to FWC before Commissioner Lee, which gave rise to recommendations and the
second investigation by Mr Simmonds.125 Ms Newton said Commissioner Lee provided
recommendations that included Nyrstar clarifying in writing the allegations the subject of the
investigation, that Mr Simmonds undertake an independent investigation and the ability for
the suspended employees to return to work in another area of the plant, should they wish.
[110] Ms Newton said that after the conference before Commissioner Lee, she advised Mr
Farmer of the engagement of Mr Simmonds and requested him to gather additional statements
from Ms Williams, Messrs Rainbird, Wells, Fraraccio, Schultz, King, Phillips, T Hinds,
Seabourne, Moore, Terry and Mudge, the 12 statements. Ms Newton said these statements
were completed on 29 August 2013 and that somewhere around that time she met with Mr
Farmer and that she was shocked at the content of the statements.
The Second Investigation
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[111] In accordance with Commissioner Lee’s recommendations Mr Wilson-Haffenden
wrote to Mr Cannan and Mr Fuller on 30 August 2013126 providing greater details of the
allegations against them, that on 4 September 2013 he received the 12 statements from Mr
Farmer and that he provided those statements to Mr Simmonds that day127 On 10 September
2013 Mr Wilson-Haffenden received from Mr Simmonds a set of draft allegations128 to be put
to the six individual employees under investigation. On the evidence, Mr Wilson-Haffenden
undertook the following:
sent an email to Mr Jeremy Kouw regarding the status of the investigation and on 16
September 2013 sent an email to Mr Curtis about the incident involving Mr
McCullum indicating his disappointment at Mr McCullum’s version of events129
that by 16 September 2013, he had formed the view that Mr Fuller was a bully130
on 18 September 2013, wrote to the six employees, including Mr Cannan and Mr
Fuller,131 detailing the general and specific allegations against them, together with
supporting information
arranged for Mr Simmonds to interview Mr Cannan and Mr Fuller on 20 September
2013
arranged for Mr Simmonds to meet with Mr Fraraccio and discuss his file notes
on 27 September 2013 received Mr Simmonds report with findings.132
[112] Mr Reeves said the only terms of reference formulated for the second investigation
where the allegations provided to the employees on 18 September 2013 and which were
responded to in the interviews with Mr Simmonds, whilst he and Ms Marshall of the CFMEU
were present. He said at that time he did not know whether the allegations contained any
information from the 12 statements taken by Mr Farmer, as at the time he was not aware of
the existence of those statements. He stated that Mr Simmonds had the allegations with him
when he conducted the interviews and that Mr Simmonds was fairly aggressive. Mr Reeves
confirmed that neither he nor Ms Marshall raised Mr Simmonds’ aggression with him at the
time.
[113] In relation to the allegation of bullying of Mr McCullum, Mr Wilson-Haffenden put
Mr Simmonds in contact with previous Nyrstar Production Coordinator James Rose and that
Mr Rose provided a statement133 to Mr Simmonds relating to that allegation; and that Mr
McCullum also provided a statement134 to Mr Simmonds.
The ‘show cause’ letter and meetings
[114] Following receipt of Mr Simmonds’ report, Mr Wilson-Haffenden said the six
employees were provided with correspondence135 on 7 October 2013 detailing the findings
against them, asking them to ‘show cause’ as to why their employment should not be
terminated and that he was entitled to replace Mr Simmonds’ findings with his own.
Relevantly, the following exchange took place under cross-examination:
“We don’t find in your letter of 7 October, “I note that Mr Simmonds found these
allegations were not made out, but I consider they are and I need you to respond to
them”, do we?---No.”136
[115] The evidence provided that Mr Wilson-Haffenden and Production Manager, Mr Curtis
met with Mr Cannan on 17 October 2013 and that:
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Mr Cannan provided a response that included information on each of the matters
itemised in the ‘show cause’ letter;
Mr Cox had not been questioned by Mr Simmonds as to witnessing one of the
allegations involving Mr Fraraccio;
Nyrstar considered Mr Cannan’s response amounted to him saying he had done
nothing wrong, that Mr Simmonds had got it wrong and he disputed the description
of his behaviour
Mr Wilson-Haffenden mentioned the Nyrstar Code of Business Conduct, but that Mr
Cannan could not remember it being disseminated in 2009/10 within the workplace
and he had never seen it before the ‘show cause’ meeting.137
[116] Mr Wilson-Haffenden said that during the show cause meetings he had tried to discuss
the further information from the 12 statements but that “Mr Reeves took over the meeting and
said, “You’ve asked us to show cause. We will respond”.”138 He also said he had had some
discussions with Mr Noel Washington of the CFMEU which indicated that there were other
Team Leaders involved and that the CFMEU had never requested further information from
him.139 He said that he had a number of discussions with Mr Washington about what options
might be available, after receiving Mr Simmonds’ report.140
[117] Both Applicants stated they were unaware of any matters being raised with their
representatives that were historical in nature and that were being considered as part of their
termination.141
[118] Mr Wilson-Haffenden and Mr Curtis met with Mr Fuller on 23 October 2013 as he
had been interstate the week previous. The evidence was that Nyrstar considered Mr Fuller’s
response to the ‘show cause’ letter as suggesting where improvements could be made in
Casting to increase production. Mr Wilson-Haffenden said “There was no recognition or
acknowledgement that his behaviours were inappropriate and had caused other employees to
be humiliated, embarrassed and in several instances, damaged.”142 However Mr Wilson-
Haffenden confirmed that the only reference he made about this behaviour, to the Applicants,
was by stating in a letter “I have considered all the available information”.143
[119] In the interview with Mr Simmonds, Mr Fuller said he was sorry if anyone was bullied
or harassed or intimidated by anything he said or did. He said he told Mr Simmonds that he
did not intend that at all.144
[120] Mr Wilson-Haffenden said that following the ‘show cause’ meetings with Mr Cannan
and Mr Fuller, both he and Mr Curtis considered the Applicants’ responses, their lack of
contrition, their service history, the 12 statements taken by Mr Farmer and Mr Simmonds
findings.145 Under cross-examination, Mr Wilson-Haffenden provided the following exchange
relating to the ‘show cause’ letter and eventual dismissal of Mr Cannan:
“The opportunity that you gave Mr Cannan to show cause for why his employment
should not be terminated related to the matters referred to in those two dot points,
correct?---That is what I have in the letter, Mr Reitano.
And that was the reason that you terminated Mr Cannan’s employment?---Mr Reitano,
I’ve said to you that is part of the reason I terminated Mr Cannan’s employment.” (my
emphasis)146
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[121] Mr Wilson-Haffenden confirmed that the only allegations on which he asked Mr
Cannan and Mr Fuller to ‘show cause’ were those matters contained in the ‘show cause’
letters which included the findings in Mr Simmonds’ report.147 He did not provide the
Applicants with the 12 statements as he was concerned around the wellbeing and
confidentiality of some of the people who gave those statements.148 He did not ask Mr Cannan
about the information set out in those statements149 and he did not include in the ‘show cause’
letter any part of the general allegation investigated by Mr Simmons that involved
information from the 12 statements.150
[122] Mr Wilson-Haffenden said he did not indicate in the ‘show cause’ letters that he was
seeking for the Applicants to provide a response around contrition and that as no contrition
had been expressed by either Mr Cannan or Mr Fuller, it was not appropriate to consider
options other than dismissal. Mr Wilson-Haffenden confirmed in cross-examination that had
Mr Fuller made a statement that he had not intended to bully or humiliate anyone in anything
that he did, that statement would have been a material consideration. It was put to Mr Wilson
Haffenden that Mr Fuller made such a statement to Mr Simmonds when he was
interviewed.151 Mr Wilson-Haffenden said that Mr Fuller never advised him of that
statement.152
[123] Mr Wilson-Haffenden said he did not listen to the recordings of the interviews
conducted by between Mr Simmonds and he did not investigate, prior to the dismissals,
whether the matters referred to in the 12 statements were subject to contemporaneous
management action. He said all factors were considered on reaching the decision to terminate
Mr Cannan and Mr Fuller’s employment and that Nyrstar’s Code of Business Conduct had
been sent to all Nyrstar departments for distribution.
[124] Mr Cannan described reading the 12 statements and feeling shattered, which had
caused him to reflect on what had occurred in the workplace. He stated “To think, you know,
that you may have had a part to do with someone that was thinking along them lines, I had no
idea he ever felt that way… Again, yes absolutely no idea they felt that way.”153
[125] It was Mr Wilson-Haffenden’s evidence that of the six employees investigated by Mr
Simmonds, three were dismissed and three were transferred to other parts of the plant.
Management Action
[126] Mr Wells described D-panel’s behaviours over more than 10 years as negative, not
constructive and disputing minor matters. He said it was clear when he returned to the
Superintendent role in 2012, D-panel culture was the same as it had been in the early 2000s,
that is, dysfunctional and opposed to management. 154 Of his time as D-panel Team Leader Mr
Wells said “They had no understanding of what was acceptable and what was not acceptable.
They were high maintenance.”155 He said “[Terry] Hinds approached me and said he couldn’t
cope any longer with working on D panel. I decided to put Brian Paynter into the role as he
had a very likable nature. After a period of time my observation was that he allowed the
behaviours to go unreported. I had numerous discussions with Paynter in relation to this but it
appeared that nothing was going to change”156 confirming that he was aware of the
behaviours of D-panel during Mr T Hinds’ and Mr Paynter’s tenures as Team Leader.157
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[127] Mr Wells said he and Mr Fraraccio had commenced a process of meeting with D-panel
members individually to discuss their behaviours in January 2013, having good meetings with
Mr Roberts and Mr Wilson, but that he then went on leave and did not know whether the
process had continued. Mr Wells later changed his statement to “However, the process was
derailed by Roberts and Wilson. Roberts became angry and demanded examples… Soon
thereafter, a number of Operators on D-panel commenced complaints against Fraraccio.” 158 I
find Mr Wells’ evidence on this point contradictory and unsatisfactory.
[128] Mr Wells confirmed he spoke to D-panel in pre-start meetings about their behaviour
and negativity toward the company but that he never had reason to take any formal
disciplinary action against Mr Cannan or Mr Fuller. He also confirmed that he never advised
anyone else to take any action;159 stating that it was the Team Leader’s responsibility to
instigate disciplinary action; and that he had had discussions with them about dealing with the
behaviour.
[129] Mr W Hinds, who last worked on D-panel in 2004 said when relief Team Leading he
would refer serious matters to his Superintendent, who at that time was Mr Tyson. He said he
never instigated disciplinary action against the Applicants and that if he had had any issues he
would have referred them to the then Team Leader or Superintendent. He also said he
documented and coached Mr Fuller for “abusing a contractor”160 but provided no clear time
as to when this coaching occurred.
[130] Mr Seabourne confirmed that Mr Cannan and Mr Fuller had always been courteous
and pleasant to him, that they were individuals he would ‘have a chat with’, that personally he
got along with them and had no difficulty raising matters with them. 161 He said if a matter
was serious he would have referred it up the line to be dealt with by the Superintendent, Mr
Wells, but that he never had any reason to refer either Mr Cannan or Mr Fuller for
disciplinary action.
[131] The following exchange took place under cross-examination with Mr Seabourne:
“Did you ever go to anyone whether it be Mr Wells or at an earlier time when I assume
Mr Wells wasn’t around, and make any complaint, formal or informal, about Mr Fuller
or Mr Cannan’s behaviour at work?---No, not about those two, no.
And you never had any reason to do that at all?---No, only in regard to the way that D
panel itself was operating, but never in regard to an individual.
When you say “in the way that D panel was operating”, things like – in fact we
probably could go through them but the main one I think is their position on job
rotation?---When I was last there, they didn’t rotate every job.
…
I’m just trying to understand when you say things about the way D panel itself operated,
is that one of the types of things you’re talking about?---Like leaving people on a
machine instead of rotating through machines. It makes it – people get used to what the
machine is operating like, that’s my opinion, and that makes life easier for people.162
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[132] Mr Phillips evidence was that he never discussed with Mr Cannan or Mr Fuller any
concerns he had with them not agreeing to make changes, ringing the help alarms, not trouble
shooting or swearing in the workplace.
[133] Mr Mudge said he never had reason to take disciplinary action, or to refer an issue for
disciplinary action, against Mr Cannan, Mr Fuller, or anyone else in his time with D-panel,
which included all the matters detailed in his written statement. Relevantly, Mr Mudge said:
“I moved off D Panel in June 2010 to become Acting Operations Superintendent [sic] in
Casting. I was no longer on D Panel but had an overarching responsibility.
In general discussions with the Leadership Group in Casting, it was obvious there were
problems with D Panel. My concern is that, although we understood the people and
culture of D Panel, nobody knew how to tackle the problem and the situation was
allowed to persist.”163
[134] Mr Schultz confirmed that he was ‘old school’, sorting out the issues on the floor
rather than taking it further; that he never instigated disciplinary action against either of the
Applicants; that he had dealings with Mr Cannan and Mr Fuller when operational mistakes
had been made; and that in the six years in total he had worked with D-panel, he was unaware
of any disciplinary action against the Applicants. He said he considered bullying was a
serious matter which would cause him to take action in the workplace. Mr Schultz’s
subsequent evidence about whether he referred allegations of bullying by Mr Cannan or Mr
Fuller to his Superintendent is less than satisfactory, having contradicted himself on a number
of occasions.
[135] Mr Schultz said it was unpleasant and he was unhappy working on D-panel.
Specifically he said “My Superintendent, Craig Wells, asked me to move off D Panel in late
2012. He told me [he] didn’t want to see me fail and he was concerned for me. I stood down
as Team Leader so I could become a Process Leader on A Panel.”164
[136] It was Mr Moore’s evidence that on starting with D-panel in 2000 there was an “us
and them”165 mentality concerning the Team Leader and Process Co-ordinator. He said some
Operators on D-panel, including Mr Cannan and Mr Fuller, were difficult to manage,
antagonistic, negative and raised safety concerns as a way to resist change. Mr Moore, in his
testimony, explained antagonistic and negative as Mr Fuller’s refusal to accept the changes
management wanted to make.
[137] Mr Moore said his work days were full of conflict and negativity which undermined
his confidence and he dreaded going to work. Under cross-examination, Mr Moore confirmed
the last full time occasion he had worked personally in a managerial role with D-panel was in
about 2000. Mr Moore said “being on the Leadership Team on D Panel was referred to as “the
tour of duty” amongst Management in Casting”.166 Mr Moore said he had noticed a change in
Mr Fraraccio after he became Team Leader on D-panel.
[138] Mr Moore said when he was Process Leader on D-panel he did not have any difficulty
raising complaints, but that nothing occurred that warranted him taking any formal action
against Mr Cannan or Mr Fuller.167 He said he never raised any performance management
issues with Mr Cannan or Mr Fuller in relation to D-panel ringing alarms and not trouble-
shooting and was not able to say which Operators had rung the help alarms at that time,
[2014] FWC 5072
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although he had spoken to the then Team Leader, Mr T Hinds about the matter. Mr T Hinds
confirmed that, if necessary, he would have instituted disciplinary action against an employee
and that he never had reason to discipline either Mr Cannan or Mr Fuller.168
[139] It was Mr Rainbird’s evidence that he had never witnessed or heard of any bullying
behaviour by D-panel members.169 He said D-panel was referred to as “the burn out crew”
and that senior managers had expressed concerns about running communication sessions with
D-panel.170 In his first statement to Mr Farmer, Mr Rainbird stated “Craig Wells addressed
Fraraccio, myself and others within management in early 2013 and said we must be careful to
treat D Panel with respect.”171 He said he or the company had never raised the issues of crib
breaks, rotations, use of the sky walk bridge or the ringing of help alarms as problems with
any members of D-panel.
[140] Under cross-examination the following exchange took place with Mr Rainbird:
“…in relation to turning up for work, and saying it was too fucking short or words like
that, you never said to them I don’t want you saying those words when you turn up to a
pre-start meeting, and you never gave them the opportunity to correct their behaviour
in that respect, did you?---No, I didn’t.
And you didn’t cause anyone else to give them that opportunity,…you should have said
to Fraraccio, or you could have said to HR, or you could have said to someone else, I
want you to go and talk to them and say that to them?---Yes.
You didn’t do that?---No, I didn’t.”172
[141] It was Mr Wilson-Haffenden’s evidence that during Mr Fraraccio’s term as Team
Leader there was no formal counselling undertaken of Mr Cannan and Mr Fuller as none such
were raised with the Human Resource Department but that he had caused training to be
conducted by the Anti-Discrimination Commission at the Risdon site and that Mr Cannan and
Mr Fuller undertook this training on 22 October 2012.
Fraraccio’s conduct/Miscellaneous
[142] Mr Reeves said that in late April and early May 2013 he met with D-panel about
concerns over Mr Fraraccio’s behaviour. He said D-panel employees told him Mr Fraraccio
consistently told them “You’ve had it too good for too long. You have too long for crib. You
work something like eight and three-quarter hours a shift, not 12 hours.”173 He said through
Mr Fraraccio raising crib times at every panel and constantly raising the issue of rotation of
jobs, D-panel were being isolated. Mr Reeves said that on the basis of what he was told, he
considered Mr Fraraccio’s treatment was unreasonable, in line with an Anti-Discrimination
Commission’s pamphlet distributed in the workplace. He advised D-panel to raise a formal
complaint about the behaviour and said that shortly after he raised the bullying matter with
Ms Victoria Newton.
[143] Mr Cannan said Mr Fraraccio regularly commented that they (D-panel) had had it too
good for too long. Mr Fraraccio denied being aggressive with D-panel members when dealing
with the issues of crib breaks and rotations.
[2014] FWC 5072
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[144] Mr Fuller said he was subjected to Mr Fraraccio continually bringing up issues with
him such as reducing crib breaks, implying that excessive smoke was occurring due to the
dampers being left open, pushing for acceptance of the new SO2 safety procedure, pressing
him to take a transfer or an exit package, and that Mr Fraraccio was generally checking up on
him all the time. He said he was “coming to work, panel after panel, wondering what scenario
was going to be brought up next where I would be defending our conditions and our workers’
rights”,174 and that it was affecting him personally both at work and at home.
[145] Mr Cannan attended the meeting between Mr Fuller and Mr Fraraccio on 17 April
2013 and said that Mr Fraraccio offered Mr Fuller an “exit package” on three occasions,
describing Mr Fraraccio’s behaviour as harassment due to his body language and menacing
speech, which Mr Cannan said made him feel uneasy. He said Mr Fraraccio told Mr Fuller
that his behaviour needed to change or he didn’t have a future at Nyrstar.
[146] Mr Fraraccio denied trying to harass Mr Fuller into taking an exit package during that
meeting saying he could not recall how many times he made the offer of the exit package.175
[147] Mr Fraraccio said he was not aware that Nyrstar’s disciplinary policy was also a
performance improvement policy, but recalled looking at it at some stage and was aware of
the formal warning document attached to that policy. He said the file notes he kept on Mr
Fuller were to assist him when completing the performance review documentation,
confirming that he did not divulge to Mr Fuller that he was keeping these notes or that he had
to.176 Mr Fraraccio said he tried to build working relationships and deal with issues as they
arose, however he found dealing with Mr Fuller, Mr Cannan and other D-panel members to be
“constantly confrontational and draining”.177 He said he was aware that Mr Fuller was the
union delegate.
Audio of interviews conducted by Simmonds
[148] I have availed myself of the audio recordings of the interviews conducted between the
Applicants and Mr Simmonds. I was able to confirm the transcript178 provided of the
exchange between Mr Fuller and Mr Simmonds which indicated contrition on the part of Mr
Fuller. I was also able to ascertain that whilst the interviews did, at times, become heated, I
am of the view that the Applicants were afforded an opportunity to respond to the matters put
to them.
Remedy
[149] Mr Cannan is married with three children with the two youngest children, aged 12 and
17 living with and being dependent on him. He is 50 years of age and is the main income
earner in his family. In early February 2014 Mr Cannan obtained employment at a car wash
and is paid $20 per hour, working approximately 24 hours a week guaranteed and that he has
been unsuccessful to date in finding other employment.179
[150] Mr Fuller is married with a son and daughter, aged 15 and 17 who live with him. He is
the main income earner in his family. Mr Fuller obtained casual employment with an orchard
and earns approximately $650.00 net for a full week’s work. From dismissal to the end of
April 2014 Mr Fuller had earned approximately $8,700 in that employment. He made
application with a Nyrstar contractor, VMAC, but received no work through that
application,180 nor has he been successful in finding other employment to date.
[2014] FWC 5072
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[151] Messrs Fraraccio, Rainbird and Wells all said that D-panel was running better since
the Applicants’ dismissals.
Submissions
The Applicants’ submissions
[152] Mr Reitano for the Applicants submitted that on Mr Fraraccio becoming Team Leader
for D-panel, issues arose in respect of crib breaks, with Mr Fraraccio having a differing view
to Mr Cannan, Mr Fuller and other employees on D-panel, as to the time available for crib
breaks,181 and that despite these opposing views and Mr Fuller placing the matter into dispute,
the dispute was never passed up the line by Mr Fraraccio and thus never determined. Also Mr
Fraraccio wished to change the rotational way in which D-panel worked, preferring to have
operators ‘specialise’ in their tasks. This was resisted by the Union and members of D-panel
and became a source of controversy and irritation.
[153] It was submitted that the SO2 (odourless and transparent gas) incident resulted in a
safety dispute due to Mr Cannan and others considering that Mr Fraraccio’s direction that
they work in the area with personal SO2 alarms affixed to them was not safe, that the
concerns of Mr Cannan, Mr Fuller and other D-panel employees were legitimate concerns,
entitled to be pursued and resolved, and were not attempts to undermine Mr Fraraccio.182
[154] Mr Reitano submitted that the meeting held on 17 April 2013 between Mr Fraraccio
and Mr Fuller, with Mr Cannan present, was a significant event in this matter; that Mr Cannan
was concerned about Mr Fraraccio’s demeanour toward Mr Fuller, when Mr Fraraccio asked
Mr Fuller several times whether he wanted an exit package. It was this event that instigated
Mr Fuller’s complaint of bullying against Mr Fraraccio.
[155] Mr Reitano submitted that the Nyrstar Code of Business Conduct requires employees
to be open and honest and to act with respect, dignity, fairness and courtesy. It was said that
Nyrstar’s conduct towards Mr Cannan and Mr Fuller does not meet these requirements as
their managers never addressed any behavioural concerns in an open and honest manner.
[156] Mr Reitano stated that the treatment afforded to the Applicants whilst they were being
investigated for bullying was very different to the treatment afforded to Mr Fraraccio when he
was being investigated for the same thing; with Mr Fraraccio being allowed to stay at work
and was given copies of all statements made against him, whilst Mr Cannan and Mr Fuller
were suspended, did not receive copies of statements and weren’t even told about statements
and allegations that had been made against them.
[157] Mr Reitano stated that Nyrstar failed to act on its Performance Improvement and
Disciplinary Policy to address any inappropriate behaviour. It was said that the policy applies
to everyone within the workplace and that at paragraph 5 of the policy provides “Employees
will be provided with an opportunity for improvement to meet the required performance and
behavioural standards and, where practicable, be provided with assistance.” Mr Reitano stated
that Mr Cannan and Mr Fuller received no opportunity to improve behavioural standards and
there was no offer of assistance. Further the policy calls for supervisors and managers to be
responsible for maintaining appropriate behaviour and that action should be taken in a timely
manner, none of which, it is asserted, was followed by management.
[2014] FWC 5072
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[158] It was said the evidence substantiated that neither Mr Fraraccio nor any of the former
D-panel supervisors instigated any form of formal counselling of Mr Cannan or Mr Fuller. Mr
Reitano stated that the disciplinary policy required that formal counselling advise an
employee that should their behaviour not change, it could lead to termination of employment,
and that the Applicants were never told this.
[159] Mr Reitano submitted that it is necessary to consider the position of Mr Cannan and
Mr Fuller separately, but that there is a marked similarity with their circumstances. He stated
both were longstanding employees of more than 18 years of relatively unblemished service
and were dismissed for almost identical circumstances and reasons.
[160] In relation to Mr Fuller, it was submitted that other than an incident in 2002 and
another in 2006 regarding behaviour toward a contractor, Mr Fuller had not been disciplined,
counselled or warned about his conduct or performance at work in relation to the issues giving
rise to his dismissal or any other matter. It was said that Mr Fuller was never disciplined or
warned that his employment might be terminated because of the matters that ultimately
concluded his employment on 29 October 2013; that he was regarded, over a sustained period,
as a good employee who met or exceeded objectives; that his performance continued in this
vain under an appraisal conducted by Mr Fraraccio, dated 15 July 2013; and that due to
objective documentary evidence, Mr Fuller’s good performance should be considered
uncontroversial.
[161] In respect of Mr Cannan, it was submitted that other than being ‘coached’ for his use
of sick leave approximately 10 years ago, Mr Cannon had never been the subject of any
formal disciplinary action; always being regarded as a satisfactory employee.
[162] It was said that Mr Cannan was never disciplined or warned that his employment
might be terminated due to the matters that gave rise to his dismissal. Mr Reitano said that Mr
Cannan’s evidence provided that at no stage was it ever indicated to him that his performance
or conduct was unsatisfactory and this was not challenged in any material way by Nyrstar. It
was submitted that Mr Fraraccio, in his performance appraisal of Mr Cannan, considered Mr
Cannan was an employee who achieved all objectives and satisfied all criteria.
Unfairness
[163] Mr Reitano stated that, objectively viewed, Mr Fuller and Mr Cannan were not guilty
of serious or other misconduct that would give rise to a valid reason for termination of
employment. It was said that if Mr Fuller and Mr Cannan did anything wrong, they were
never disciplined, counselled or warned about the matters and that Nyrstar’s failure to
consider reasonable alternatives to dismissal and the personal circumstances of the Applicants
rendered the dismissals unfair and harsh pursuant to s.387(h) of the Act.
[164] Mr Reitano said it was significant that Nyrstar, relied upon matters that did not form
the reasons for dismissal at the time it dismissed Mr Cannan and then Mr Fuller. It is
submitted that Nyrstar relied on allegations that were not proven by Nyrstar and were never
contemplated or raised as part of the dismissal process, thereby rendering the ‘show cause’
and termination process procedurally unfair.
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[165] The historic matters relied on by Nyrstar to support the dismissals had been within the
knowledge of Nyrstar managers for a very long time and it was said this gave rise to the
principles of condonation and waiver. Due to the matters complained of by Nyrstar stretching
back over months and years, the alleged behaviour in the context of the workplace was either
tolerated or there was complete acceptance that the alleged behaviour was acceptable,
referring to the previous case of B, C and D v Australian Postal Corporation t/a Australia
Post [2013] FWCFB 6191 at [42].
[166] Mr Reitano submitted that both Mr Cannan and Mr Fuller were frank and forthright
witnesses, who, when cross-examined, made appropriate and proper concessions about what
had occurred in the workplace which included admissions such as “I was pissed off, yes, I
was”183 therefore, where conflict of evidence arises, their evidence should be preferred. He
cautioned the acceptance of witness evidence called by Nyrstar stating “it seeks to explain
away objective facts that support Mr Fuller and Mr Cannan’s case in a way which is
disingenuous and, in some cases incredible.”184 In this regard the Applicants sought to rely on
the performance appraisals conducted by Nyrstar management; Mr Fraraccio’s unsatisfactory
explanation as to the conflict between his evidence and the documented performance
appraisals; Mr Wilson-Haffenden’s evidence that Mr Fuller swore at a contractor when that
was never proven, his failure to appreciate Mr Fuller’s remorse when interviewed by Mr
Simmonds, and the matters of which he took account in determining his reasons for the
dismissals and the reasons he gave to the Applicants.185
[167] It was said that Mr Fraraccio’s failure to raise any of the matters now in his statements
until after the bullying complaint was raised against him, including secret file notes he kept on
employees was not capable of rational explanation; and that the unverified notes were a
serious matter and should not be treated by the Commission as evidence that is credible,
particularly due to Mr Fraraccio’s failure to have them verified.
[168] Mr Reitano stated that all of the evidence presented by Nyrstar failed to acknowledge
the representative role Mr Fuller and Mr Cannan both played within the workplace.
Reasons for dismissal
[169] Mr Reitano submitted that both termination letters were in substantially the same
terms, did not provide any great detail of the alleged ‘bullying and harassment’ misconduct,
or what the ‘inappropriate conduct’ was. He said it may safely be presumed that the alleged
serious misconduct pertained to matters referred to in the termination letters and was the only
things the Applicants were invited to ‘show cause’ about, and involved the findings made by
Mr Simmonds.
[170] It was submitted the allegations were first raised against the Applicants on 18
September 2013 and had not been the subject of any earlier complaint. These were different to
the allegations that were made on 13 August 2013, in that they alleged conduct against more
people than Mr Fraraccio.
[171] Importantly, it was said that the termination letters also stated what appeared to be
‘further reasons’ for dismissal which included, but were not limited to, a lack of
acknowledgement, accountability and a failure to display remorse for the behaviours which
formed part of the reasons for dismissal as confirmed by Mr Wilson-Haffenden’s evidence.
[2014] FWC 5072
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Mr Reitano said the Applicants were not permitted to be heard on these matters, which
breached the obligations in s.387(c) of the Act.
[172] Also relevant, Mr Reitano said, was that Mr Wilson-Haffenden relied on other matters
for the basis of the dismissals which were not put to Mr Fuller and Mr Cannan, and that it was
not entirely clear from his evidence what those matters were. Mr Retaino said this included
information contained in the 12 statements which were not found proven by Mr Simmonds. It
was said that the Commission should reject the suggestion that Mr Cannan and Mr Fuller
were provided with information from the 12 statements through the general reference in the
termination letter of ‘all other information’. Mr Reitano said these were also matters on which
the Applicants had no opportunity to be heard and is significant given Mr Cannan’s evidence
of contrition.186
[173] Mr Reitano submitted that even if the findings of Mr Simmonds were accepted, it
could not be found that those findings, in context and objectively viewed, were so serious as
to warrant dismissal and that the only relevant allegations in this matter were those found
proven against Mr Cannan and Mr Fuller in the second investigation.
The allegations against Mr Fuller
[174] It was submitted that there were seven findings against Mr Fuller on which Nyrstar
relied in dismissing him. These were:
First, that he ‘bullied another employee Mr McCullum, undermining Mr Fraraccio’s
authority’ and involved Mr Fuller explaining to Mr McCullum that he and other
CFMEU members wanted to continue to rotate jobs in D-panel. Mr Fuller denied the
allegation. Mr McCullum said he was not bullied or intimidated and was not called
to give evidence. Mr Rose, another employee said to be in the crib room at the time
of the alleged incident, was not called to give evidence. Mr Fraraccio did not even
speak to Mr Fuller about it. It was said the Commission should find this allegation
not made out.
Second, that the raising of a dispute about manning levels on 28 January 2013
involved bullying and undermining of Mr Fraraccio. It is submitted the dispute could
be raised under the EBA187 and was appropriately done. No disciplinary action,
informal or otherwise was taken against Mr Fuller and it is said to be unclear as to
why this was considered bullying or undermining of Mr Fraraccio and that even if
Mr Fuller was wrong about his right to raise disputes (which he wasn’t), he was
never advised of this.
Third, that on 5 February 2013 Mr Fuller was engaged in a dispute with a contractor,
Mr Dodge and used the word ‘fuck’ in conversation. There was never a finding that
Mr Fuller swore at Mr Dodge and Mr Fuller did not deny using the word and offered
to apologise to Mr Dodge for expressing his frustration.
Fourth, that on 10 April 2013 Mr Fuller said in a pre-start meeting ‘I will see you in
the fucking Commission. I will have the dispute paper work with you on Monday’
on the issue of crib times. In the context of the shop floor environment it was said
the use of the expletive was hardly unknown of, unheard of, or offensive and that Mr
Fraraccio failed to follow the disputes procedure to have the matter dealt with.
Objectively viewed, the matter was not treated as serious at the time and the use of
the expletive could be said to be condoned.
[2014] FWC 5072
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Fifth, the action of Mr Fuller putting the crib break matter into dispute was bullying
and inappropriate. Mr Reitano submitted the matter was ‘live’, of concern to many
employees in D-panel and it was appropriate for the matter to be placed into dispute
and resolved via the usual procedure. It was said this was not misconduct.
Sixth, it was alleged Mr Fuller said ‘what’s up your arse’ when questioned by Mr
Phillips about being in the showers early. Mr Fuller did not deny saying those words
and the matter was not raised as a disciplinary matter at the time; and that Mr
Phillips’ failure to complain about the matter at the time illustrates the importance
Mr Phillips placed on the matter.
Seventh, an accusation involving Mr Fuller raising a production-related matter with
his Team Leader despite having been advised months earlier that his Team Leader
was not to be involved in production-related matters. It is submitted that the
allegation is specious in that the matter was not the subject of any disciplinary
action, or any other action, at the time it occurred.
[175] Other allegations were made against Mr Fuller, which Nyrstar did not rely upon in the
dismissal. Mr Reitano said it was important that Nyrstar confined itself (in the ‘show cause’
and termination letters), as its reasons for dismissal, to the allegations found sustained by the
second investigation. He said that none of the general allegations made against Mr Fuller and
Mr Cannan, were found by Mr Simmonds to be substantiated.
The allegations against Mr Cannan
[176] It was submitted that there were five findings against Mr Cannan on which Nyrstar
relied in dismissing him. These were:
First, an allegation that on 18 January 2013 Mr Cannan moaned and hissed at Mr
Fraraccio which was considered to be disrespectful. Mr Cannan denied the allegation
and he was not found by Nyrstar to have moaned and hissed and the allegation is not
made out.
Second, alleged Mr Cannan raised his voice at Mr Fraraccio. Mr Cannan denied the
allegation and said Mr Cox could verify his version of events. Mr Simmonds did not
ask Mr Cox about the matter. Mr Cox stated there was no yelling or raising of
voices. On the basis of this evidence it is said the allegation should not have been
made out.
Third, alleged that on 31 March 2013 Mr Cannan was disrespectful and
inappropriately angry. Mr Cannan admitted that he was angry about someone
interfering with his work, but the anger was not directed at Mr Fraraccio and that
after receiving direction, he resolved the matter directly with Mr King. It was
submitted this was not bullying; the frustration, as exhibited, is not a ground for
dismissal and without substance.
Fourth, an allegation that Mr Cannan spoke disparaging words to Mr King, the
Process Leader and did not involve a suggestion of bullying of anyone. The
allegation ignores that Mr Cannan spoke with Mr King shortly afterwards to deal
with the matter and does not amount to a disciplinary matter and was not dealt with
as such.
Fifth, an allegation that Mr Cannan was ‘pointedly unpleasant’ to Mr Phillips. The
allegation was denied by Mr Cannan, is entirely meaningless and articulated no
conduct on Mr Cannan’s part. It was said to be the subject of an unverified file note
and was not the subject of any management action.
[2014] FWC 5072
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[177] Mr Reitano said that the evidence in response to the allegations in Mr Cannan’s
written statement is completely consistent with his evidence given under cross-examination.
Further, it was submitted that when Mr Cannan was confronted with the 12 statements, he
said he did not intend to affect anyone in the way that was described in those statements, even
more so in relation to one of the statements, and that he was denied the opportunity to address
these matters at the ‘show cause’ meeting due to the statements being undisclosed.
In general
[178] Of all of these matters, it was submitted, neither Mr Cannan nor Mr Fuller were ever
warned that any repetition of their conduct would lead to disciplinary action or dismissal.
There appeared a pattern of failure to deal with matters at the time they arose and that Nyrstar
had failed to prove misconduct such that would warrant dismissal. Mr Reitano said the
investigator’s approach of giving primacy to undisclosed file notes was in error; that the notes
were not tested and amount to nothing more than an unverified view of one party; and that for
the most part were the subject of a direct denial by Mr Cannan or Mr Fuller. Further, Mr
Reitano said the failure of Mr Fraraccio or Mr Phillips to deal with issues at the time they
occurred should affect the creditworthiness of those individuals’ allegations.
[179] Mr Reitano submitted that the investigation took a misconceived view of the right of
employees to invoke the disputes procedure from the workplace agreement and that Mr Fuller
should not have been criticized for invoking those rights. Nor did the investigator, it was said,
explain how he found the behaviour to be a breach of policy, or inappropriate such as to
amount to bullying.
[180] The Applicants submitted if there was a serious concern about their behaviour, that
should have been, as a matter of fairness, raised and dealt with by the appropriate disciplinary
policy. It was put by Mr Reitano that:
The applicants were not given an opportunity to address their alleged behaviours
That the lack of particularity and the use of words like ‘negativity’, ‘aggressive’, or
‘disruptive’ coupled with the historical nature of the allegations required them to be
rejected as a valid reason for dismissal
That in any event, due to the lack of management action on matters over a long
period of time, the Commission should consider that any misconduct or wrongdoing
had been condoned and waived by Nyrstar.
[181] Mr Reitano made submissions addressing each of the criteria contained in s.387 of the
Act and submitted that reinstatement (or re-employment on terms no less favourable) was
appropriate, with continuity of employment and payment of any remuneration lost due to their
dismissal. As to the basis of reinstatement, Mr Reitano sought to rely on Callahan v Graphic
Impressions [2014] FWC 437.
Nyrstar’s Submissions
[182] Ms Zeitz submitted that following the complaint of bullying against Mr Fraraccio to
Ms Newton in early May 2013, Nyrstar had appointed an investigator, Mr Farmer, who was
proposed by the CFMEU. It was submitted that in that meeting, two incidents were identified,
neither of which involved Mr Cannan. It was said by Ms Zeitz that the complaint process
[2014] FWC 5072
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initiated by Mr Reeves lifted the lid on bullying behaviour for successive members of D-
panel’s management team.188
[183] It was said that after the first investigation determined that the actions of Mr Fraraccio
were reasonable, information had become available and Nyrstar was concerned about possible
bullying by D-panel members which led to the suspension of the six employees. Ms Zeitz said
no decision had been made at that point, and Mr Farmer was still completing the 12
statements.
[184] Ms Zeitz said that previous members of D-panel management described, in the 12
statements, behaviour that was “unpleasant, abusive, insulting, critical, undermining,
persistent demands, obstructive, mocking, demeaning, belittling, humiliating,”189 and that
Nyrstar believed there was a case to answer because that conduct was identified as adversely
impacting some employees.
[185] Ms Zeitz submitted that at all times the CFMEU were representatives of the
Applicants and that they were alive to the fact there were a range of allegations made against
Mr Cannan and Mr Fuller, from the correspondence of 18 September 2013. This
correspondence followed the previous letters to Mr Cannan and Mr Fuller of 13 and 30
August 2013 which also provided allegations. Ms Zeitz said these allegations said that Mr
Cannan and Mr Fuller had been involved in an ongoing pattern of behaviour or course of
conduct which intended to have the effect, of humiliating, undermining and embarrassing
Team Leaders of D-panel and others.
[186] Ms Zeitz said that the evidence provided by the former Team Leaders and supervisors
of D-panel in their statements to Mr Farmer, as it related to the personal impact of the conduct
complained of, was unchallenged.
[187] It was submitted that Mr Wilson-Haffenden’s evidence provided that he had
discussions with Mr Washington of the CFMEU about the ‘other matters’ and that there is no
obligation on an employer to provide copies of statements from an investigation process,
particularly so when the investigation involves bullying.
[188] Ms Zeitz said Nyrstar were looking for some acknowledgement from Mr Cannan and
Mr Fuller during their ‘show cause’ meetings of the impact of their behaviour to health and
safety.190
[189] Nyrstar submitted that the Applicants did not deny the behaviour described by
witnesses, nor did they suggest they had not been spoken to about this. On this point, Nyrstar
sought to rely on the relevance of the lack of acknowledgement in Mary Lou Anning v Virgin
Australia Airlines [2012] FWA 8414. It was submitted that Mr Wilson-Haffenden’s notes of
the ‘show cause’ meeting191 indicated that D-panel were full of hate, not anger. Ms Zeitz said
this was consistent with an unhealthy workplace; the culture impacted individuals; and that
the Applicants had no interest in considering their own behaviour and its impact.
[190] In relation to condonation, Ms Zeitz indicated that whilst Nyrstar were aware of the
behaviours of the Applicants over a period of time, there was a culture within the workplace
of management trying to work with individuals on the floor to deal with issues and further,
that without the Applicants’ acceptance of their conduct, Nyrstar had no other option but to
dismiss them. Ms Zeitz conceded that the Applicants were not given a formal opportunity to
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moderate their conduct until this process, but during the process they had an opportunity to
“wake up”,192 however that opportunity was not taken.
[191] It was submitted that whilst it might be said that Mr Cannan and Mr Fuller did not
know their behaviour was inappropriate, there are such things as social and proper standards
of behaviour. It was said that the Nyrstar Way required that behaviour was courteous and
respectful.
[192] Of the investigation by Mr Simmonds, Ms Zeitz said:
“The findings that Mr Simmonds made and we do note that Mr Simmonds was given
the 12 statements. He had them. And to some extent because it was an agreed process
how that then found its way to the employees in that process we weren’t party to that
and apparently it didn’t. He made the findings about Mr [McCullum] and he made that
despite at the time Mr [McCullum] having said or recanted his position.”193
[193] Ms Zeitz said that bullying does not require a particular intent behind it as the test is
the objective observer. As such, she said, Nyrstar were correct in making its own finding of
bullying, rather than accepting the finding in Mr Simmonds’ report.
[194] It was submitted by Ms Zeitz that the allegation involving swearing and the contractor,
Mr Dodge, will have to be considered by the FWC. She acknowledged that Mr Fuller was not
given a formal warning about the matter, but he was spoken to by Mr Fraraccio and told he
needed to modify his behaviour in early February 2013. Ms Zeitz said there was a further
meeting, in April 2013 when Mr Fraraccio again told Mr Fuller he would need to change his
behaviour.
[195] Ms Zeitz said that the allegations of bullying made against Mr Fraraccio were
seriously investigated and nothing was identified that amounted to bullying behaviour on the
part of Mr Fraraccio. She said on 8 August 2013, the process of Mr Farmer gathering the 12
statements commenced.
[196] Nyrstar referred to Mr Fraraccio’s evidence which provided that with the benefit of
hindsight he should have started disciplinary processes earlier and that there was nothing
sinister in Mr Fraraccio keeping file notes on the Applicants for coaching purposes. Ms Zeitz
said whilst there was no formal disciplinary process, Mr Fraraccio was attempting to get
employees to ‘step up’ and he did not want to mark them down in their performance reviews.
[197] It was said that Mr Wilson-Haffenden was entitled to take the 12 statements into
account when making the decision to dismiss Mr Cannan and Mr Fuller, as the behaviours
were consistent over the history.
[198] Ms Zeitz submitted that one witness, Mr Seaward gave evidence that he could see Mr
Fraraccio changing and that perhaps the degree of damage that was being done was not
filtering up to levels of the organisation where it could have been dealt with earlier. She said
that Team Leaders were on the floor trying to meet the expectations of management, with
management’s position being that Team Leaders would ask for help if they needed it.
[199] Nyrstar submitted that D-panel were a coherent group of employees who had worked
together for a long time and contained strong personalities. Further, that the approach taken
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by Mr Cannan and Mr Fuller amounted to bullying, that Mr Cannan had no respect for Mr
Fraraccio and that Mr Cannan’s acknowledgement, that he treated Mr Fraraccio no differently
to his other Team Leaders, was telling.
[200] Further, Ms Zeitz referred to the incident between Mr King and Mr Cannan, indicating
that Mr Cannan never apologised to Mr King and when he did speak to him, his explanation
was patronising. Mr Schultz had spoken to Mr Cannan about his negativity. Of Mr Cannan’s
contrition expressed in evidence, Ms Zeitz said this was only after he had been availed of the
contents of the 12 statements, but that he still had not apologised.
[201] In relation to Mr Fuller, Nyrstar submitted the raising of safety and workplace rights is
encouraged, however the way in which Mr Fuller did so was a problem.
[202] Ms Zeitz submitted that Mr Terry’s evidence was that D-panel was an unfriendly,
negative environment, describing the way Mr Cannan and Mr Fuller would interact. Mr Terry
said he didn’t like going to D-panel, with Mr Mudge having similar experiences.
[203] It was submitted that Mr Schultz had tried to deal with matters ‘on the floor’ with Mr
Cannan and Mr Fuller; that Mr Moore’s unchallenged evidence described working on D-panel
as death by a thousand paper cuts, a constant grind and a constant wall of negativity; that Ms
Williams was shocked when attending a pre-start meeting and described the demeanour of
those meetings, contrary to the evidence given by the Applicants.
[204] It was submitted that Mr Seaward described working in D-panel as a wearing down
process, with it being a difficult and hostile workplace at times. Ms Zeitz referred to Mr
Rainbird’s evidence, that they took the approach of wanting to keep batting for the guys and
trying to get them across the line.
[205] Nyrstar submitted that the Commission should find, consistent with the findings of Mr
Simmonds with respect to some of the supervisors, there was a history of bullying behaviour,
with Messrs Fraraccio, King and Phillips. Further Ms Zeitz said that Nyrstar was entitled to
rely on Mr Simmonds’ finding with respect to Mr McCullum by its choice to accept the
account of Mr Fraraccio.
[206] It was submitted the allegations were put to the Applicants and meetings took place to
allow them an opportunity to ‘show cause’ why their employment should not be terminated
and that there was ample opportunity for the Applicants and their representatives to seek
further particulars of any other materials. To the extent that non-provision of other materials
was seen as a flaw in the process, Ms Zeitz submitted that nothing in the proceedings had
been identified that would warrant a reinstatement or re-employment order.
[207] Ms Zeitz submitted that whilst there might have been missteps within the process,
when taken as a whole, procedural fairness had been afforded. However, with the benefits of
hindsight it was said Nyrstar could have been more proactive about the 12 statements. Ms
Zeitz said without the contrition sought by Nyrstar, there was clearly a valid reason for
termination as the Applicants were aware of and understood the obligations and behaviour
applying to employees,194 there had been a destruction of the trust within the employment
relationship and Nyrstar had no option but to dismiss Mr Cannan and Mr Fuller. It was said
the decision reached was defensible and justified on an objective analysis of the facts and that
[2014] FWC 5072
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reinstatement or re-employment was not warranted and that the FWC should take into account
the damage inflicted on employment relationships.
[208] Ms Zeitz said that the Applicants’ ages and long service, is only a factor in
determining harshness, however this is not an overriding consideration. Nyrstar sought to rely
on Hepburn v Department of Justice (1998) 81 IR 32, as to the role of the FWC in
determining a valid reason and Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, Khan v
Cuno Pacific Pty Ltd (2005) 146 IR 441 and State of New South Wales v Manall [2005]
NSWCA 367 as to the basis of a valid reason to dismiss the Applicants.
[209] In relation to remedy Ms Zeitz made a number of submissions should I make findings
of no valid reason or that the terminations were harsh, unjust or unreasonable.
[210] On the basis of unchallenged evidence from Nyrstar’s witnesses, it was submitted that
the applications should be dismissed.
In-reply Submissions for the Applicants
[211] Mr Reitano said the ‘show cause’ letters are relevant to the question of procedural
fairness and that any suggestion that additional information or findings not made out by Mr
Simmonds appropriately formed any basis for termination cannot be countenanced. He
reasoned that if Nyrstar intended to rely on allegations not proven by Mr Simmonds, then it
had an obligation to advise Mr Cannan and Mr Fuller of that fact in the ‘show cause’ letters.
He also stated that the letters’ failure to advise the Applicants on the issue of contrition added
to the unfairness. He said if the dismissals involved anything beyond the contents of the
‘show cause’ letters, the processes were procedurally unfair, referencing clause 4 of Nyrstar’s
Performance Improvement & Disciplinary Policy.
[212] Mr Reitano said in the second investigation, five allegations were made out against Mr
Fuller and five were made out against Mr Cannan. With Mr Cannan, three of the allegations
relate to Mr Fraraccio, and one relates to each Mr King and Mr Phillips, with none of those
allegations relating to anything he did at a pre-start meeting. Nothing there was said to
indicate inappropriate asking of questions by Mr Cannan. In relation to Mr Fuller, two
allegations relate to Mr Fraraccio with the remaining three allegations relating to Mr
McCullum, Mr Dodge and Mr Phillips. One of the allegations found, relating to Mr Fraraccio,
did involve Mr Fuller and a pre-start meeting of 10 April 2013. However, Mr Reitano
submitted, that allegation 3 in the second investigation process was not made out against Mr
Fuller and in any event there is nothing in the documentation leading up to or included in the
dismissals that would indicate any allegations involving repeated conduct at pre-start
meetings.
[213] As to the evidence of other Team Leaders, Mr Reitano said if some people did not like
working with D-panel, it was not appropriate to sheet home the blame for that to Mr Cannan
and Mr Fuller, that there must be evidence of it and, on the balance of probability, it could not
be established.
[214] Furthermore that in order for bullying to be proven, the behaviour or conduct must be
unreasonable; something which he said had been overlooked. To this end, Mr Reitano said
witness after witness gave evidence that they never asked for the behaviour to stop, they never
took any action about it because they did not consider it serious or important enough.
[2014] FWC 5072
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[215] Mr Reitano stated that the allegations of bullying fail at the threshold because all of
the objective indications do not prove unreasonableness.
[216] It was also said that the evidence of negativity was explained by Nyrstar’s witnesses as
the Applicants indicating they didn’t like being at work. He said whilst it might have been
said using more florid language, it was nothing less than saying they preferred their days off.
Moreover, if the behaviour was unreasonable, they were never told they should not say these
words or do certain things and they were never counselled or warned.
[217] Relevantly, Mr Reitano said it was Mr Rainbird’s evidence that provided they did not
want to gag the Applicants or stop them raising their concerns, as directed by the General
Manager some years ago. He also said no store should be placed in the notes of Mr Wilson-
Haffenden about D-panel being full of hate, as nothing indicates that Mr Cannan or Mr Fuller
were full of hate and that matter was not put to either of them in cross-examination.
[218] As to Mr Fraraccio’s file notes, Mr Reitano said they had never been verified and that
this is the reason why Nyrstar’s disciplinary policy provided that an employee signs the note
so there can be no dispute about the content.
[219] It was said that whilst Nyrstar wished to rely on Mr Cannan and Mr Fuller not
annunciating they were prepared to change, during cross-examination, that question was never
put to them. He said the contrition the company was seeking presumed an acceptance of the
allegations in the forms that the company made them. Mr Cannan’s and Mr Fuller’s responses
were that their behaviour wasn’t as the allegations had it. This was despite, it was said, the
words of contrition spoken by Mr Fuller to Mr Simmonds during the second interview process
and that the intention of the Applicants was relevant.
Legislation
[220] These unfair dismissal applications were made pursuant to s.394 of the Act. Sections
385 and 387 are relevant in determining whether the dismissals were harsh, unjust or
unreasonable (and therefore unfair). These sections of the Act set out as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(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.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC
must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct
(including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
[2014] FWC 5072
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(c) whether the person was given an opportunity to respond to any reason related to the capacity or
conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present
to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had
been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or
expertise in the enterprise would be likely to impact on the procedures followed in effecting
the dismissal; and
(h) any other matters that the FWC considers relevant.
Consideration
[221] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission
is satisfied that:
(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.
[222] For the purposes of these matters, sub-section (a) is established and sub-sections (c)
and (d) are not relevant. In determining sub-section (b) as to whether a dismissal was harsh,
unjust or unreasonable, the Commission must consider the criteria set out in s.387.
Valid Reason
[223] In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 Northrop J found (at
373) that a valid reason is one that is “sound, defensible or well founded”. Northrop J went on
to say that “…the reason must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business”. Such a concept
embodies the element of fairness in the sense that a valid reason must be defensible and well
founded.
[224] In Australian Meat Holdings Pty Ltd v McLaughlan (1998) 84 IR 1, albeit under the
Workplace Relations Act 1996, a Full Bench of the Commission relevantly concluded at page
14 that:
“On the basis of the foregoing we are of the view that in determining a s.170CE(1)(a) application
the Commission is bound to consider whether, on the evidence in the proceedings before it, the
termination was ‘harsh, unjust or unreasonable’, provided that the evidence concerns
circumstances in existence when the decision to terminate the employment was made.
Facts which existed at the time of the dismissal but which only come to light after the dismissal
might either:
justify the dismissal when otherwise it would be harsh, unjust or unreasonable;
or
render the dismissal harsh, unjust or unreasonable.
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Findings made by an inquiry established by the employer will be relevant to the Commission’s
determination of the issues before it provided it is established that:
the employer conducted a full and extensive investigation into all of the relevant matters as
was reasonable in the circumstances;
the employer gave the employee every reasonable opportunity to respond to allegations;
and
the findings were based upon reasonable grounds.
Whilst such findings are relevant they do not conclusively determine whether the termination was
harsh, unjust or unreasonable. That issue is to be decided by the Commission on the evidence in
the proceedings before it. The test is not whether the employer believed, on reasonable grounds
after sufficient inquiry, that that employee was guilty of the conduct which resulted in
termination.”
[225] Accordingly, in considering whether there was a valid reason for dismissal based on
the misconduct of an employee, the Commission must firstly determine for itself on balance
that the conduct occurred and then determine whether or not that misconduct constituted a
valid reason for dismissal. In these matters I have had regard for the information available at
the time of the dismissals and, separately, the evidence put before me.
s.387 (a) Was there a valid reason
[226] The Applicants advanced there was no valid reason for their dismissals as the reasons
cannot be proved and even if they were, do not amount to the seriousness that would warrant
dismissal, particularly in view of any management inaction and no fair opportunity for either
of them to deal with any shortcomings. Neither Mr Cannon, nor Mr Fuller was guilty of any
deliberate or knowing wrongdoing. If the behaviour was able to form a valid basis for
dismissal, then the possibility of dismissal would have necessarily been articulated earlier as
required by Nyrstar’s disciplinary policy.
[227] The findings of Mr Simmonds are, in my view, central to establishing whether there
was a valid reason for termination. Nyrstar submitted that the Commission should find with
respect to some of the Team Leaders, and consistent with the findings of Mr Simmonds,195
that there was a history of bullying behaviour with Messrs Fraraccio, King and Phillips.
Further Ms Zeitz said that Nyrstar was entitled to rely on Mr Simmonds’ finding with respect
to Mr McCullum by its choice to accept the account of Mr Fraraccio.
[228] I firstly deal with the issue of the file notes kept by Mr Fraraccio. I accept the evidence
and submissions of Nyrstar that the file notes were kept for coaching purposes by Mr
Fraraccio and that he had no obligation to disclose them. However, for the purposes of relying
on them as evidence of wrongdoing, I have placed them no higher than Mr Fraraccio’s oral
evidence, due to their uncorroborated nature.
[229] I accept Nyrstar’s argument that bullying does not require a particular intent behind it.
The test for bullying is an objective one and the definition for being bullied at work has been
established under the new Anti-bullying jurisdiction of the FWC.196 As such, it was
appropriate for Nyrstar to consider the findings of Mr Simmonds in error. This however raises
concerns of a procedural nature, in that the substituted findings were not put to the Applicants.
I will deal with this matter when considering s.387(c).
Findings against Mr Fuller
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[230] I now deal with the findings relating to Mr Fuller and Mr McCullum. Mr Fuller denied
the allegation of bullying Mr McCullum and thereby undermining Mr Fraraccio’s authority as
Team Leader, but admitted to having a conversation with Mr McCullum about rotations. Mr
Fraraccio’s evidence was that he viewed Mr Fuller in a conversation with Mr McCullum and
said he heard words that related to the rotation of jobs. Mr Rose, who was said to have
witnessed the conversation between Mr Fuller and Mr McCullum could recall the incident but
none of the specifics and could not support Mr Fraraccio’s version of events. Mr McCullum
gave a statement to Mr Simmonds and said he was not bullied by Mr Fuller. In light of the
evidence before me I find it was an error for Mr Simmonds to have found this allegation made
out and for Nyrstar to have relied on it. The allegation of bullying Mr McCullum and of
undermining Mr Fraraccio’s authority that was made against Mr Fuller is, I conclude, without
basis.
[231] On the evidence before me, much of which was provided by Nyrstar’s own witnesses,
I am satisfied that the raising of workplace disputes by Mr Fuller was in his capacity as union
delegate and were raised over concerns that were genuinely held. Whilst it may be that D-
panel raised more disputes than other panels in Casting that in itself does not denote
misconduct and was done in accordance with the dispute settlement procedures contained in
the EBA. To the extent that Mr Simmonds found the raising of disputes to amount to
misconduct of bullying, he provided no reasons for this in his report and I am of the view his
findings were in error.
[232] In relation to the findings made against Mr Fuller on the use of swearing involving the
contractor Mr Dodge and use of inappropriate language with Mr Phillips, neither of these
matters could be said to be bullying as they are one off incidents and do not amount to
repeated behaviour against those individuals. The incident involving Mr Fuller suggesting that
Mr Fraraccio could weigh product on B-scales does, in my opinion, show a lack of
understanding as to Mr Fraraccio’s role and displayed a lack of respect for Mr Fraraccio, but
was not dealt with at the time. I consider all of these behaviours to be a breach of the Nyrstar
Code of Business Conduct which requires employees to act with courtesy, fairness, dignity
and respect.
Findings against Mr Cannan
[233] Mr Cannan denied the allegation of being disrespectful to Mr Fraraccio on 18 January
2013. Mr Fraraccio’s evidence was that Mr Cannan moaned and hissed to him. There was no
other witness evidence on this matter and the allegation was not made out by Nyrstar. I concur
with that finding.
[234] As to the allegation of Mr Cannan raising his voice at Mr Fraraccio during a
conversation about a safety issue involving barrier tape, Mr Cannan denied the allegation. Mr
Cox, who was a witness to the incident, said the conversation between both men was robust,
but that neither Mr Cannan nor Mr Fraraccio raised their voices. It was an error for Mr
Simmonds not to have questioned Mr Cox over this matter, particularly as Mr Cannan had
identified him as witnessing the incident. I find, on the basis of the evidence given at hearing,
this allegation cannot be made out against Mr Cannan.
[235] The incident on 31 March 2013 alleged Mr Cannan was disrespectful and angry with
Mr Fraraccio over interference by someone in Mr Cannan’s work. On the evidence presented
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and the submissions of Mr Reitano I conclude this behaviour was a result of frustration and
was not aimed at Mr Fraraccio. Nevertheless, the behaviour was inappropriate and was a
breach of the Nyrstar Code of Business Conduct. So too was the behaviour of Mr Cannan
when he spoken disparaging about the Process Leader, Mr King at a pre-start meeting.
[236] Having regard to the evidence of Mr Phillips and Mr Cannan relating to the incident
where it was alleged Mr Cannan was ‘pointedly unpleasant’ to Mr Phillips. I am inclined to
accept the submissions of Mr Reitano in that the allegation does not articulate any particular
conduct on the part of Mr Cannan and cannot be proven on the evidence.
Findings of historic behaviour
[237] As to the historic allegations made by previous management of D-panel involving
inappropriate behaviour by D-panel members, I have found this evidence the most difficult to
reconcile. Firstly, many of the allegations did not specifically identify an employee, instead
referring to D-panel in general. Secondly, the allegations stretch back to 1999-2000 at a time
when there were some 24 employees on D-panel. Thirdly, whilst a number of previous D-
panel management described working in D-panel as being harmful to their health and family
life, they did not consider that any of the conduct of Mr Fuller, Mr Cannan or other D-panel
members serious enough to take any action. Further a number of these same witnesses
described Mr Fuller and Mr Cannan as easy to get along with.
[238] However, based on the unchallenged evidence of Nyrstar witnesses as to how they felt
working with D-panel and some of the historic, but specific behaviours that were attributed to
Mr Cannan and Mr Fuller in pre-start meetings, and on the balance of probabilities, I have
determined that this behaviour was of a bullying nature and is a breach of the Nyrstar Code of
Business Conduct.
[239] Having regard for the authorities on which Nyrstar relied in submissions and on the
findings I have made that relate to bullying and breaches of the Code, I am satisfied there was
a valid reason for the termination of Mr Cannan and Mr Fuller.
s.387 (b) Notification of the valid reason
[240] Mr Cannan and Mr Fuller were aware of the stated reasons for their dismissal by way
of a termination letter, although it was argued that details or particulars of the reasons needed
to be gleaned from other documents. Mr Wilson-Haffenden gave evidence that part of the
reason for the dismissals were the contents of the 12 statements together with Nyrstar
substituting its own findings for the general allegation of bullying (allegation 3 in the
allegations letters),197 where Mr Simmonds had found that allegation not to be made out.
These matters, together with contrition, which formed part of the dismissal reasoning, were
not disclosed to the Applicants prior to or at the time of dismissal. Accordingly, I have
concluded that the Applicants were not notified of all of the reasons for their dismissals.
s.387(c) Opportunity to respond to any reason
The ‘show cause’ and termination letters
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[241] Having regard to all of the evidence it is clear Mr Cannan and Mr Fuller were not
afforded an opportunity to respond to all parts of the reasons for dismissal, only the matters
that were found proven by Mr Simmonds.
[242] Relevantly, as discussed earlier, Mr Wilson-Haffenden’s evidence went to him
substituting his own view for those of Mr Simmonds in relation to findings in the second
investigation. These substituted findings, together with the content of the 12 statements were
not articulated in the ‘show cause’ letters; were not provided to Mr Cannan or Mr Fuller
before their dismissals and were not outlined in the letters of termination. The ‘show cause’
letter’s198 sent to Mr Fuller and Mr Cannan provided a copy of Mr Simmonds’ findings and
requested them to ‘shown cause’ as “…the Company treats all accusations of bullying within
the workplace extremely seriously. Bullying is unacceptable and will not be tolerated. The
Company has carefully considered all of the information available to it and in particular the
matters identified through this investigation process and the findings of Mr Simmonds. The
findings are serious…” The letter did not include any reference to Nyrstar considering general
allegation 3 to be made out. I am satisfied the Applicants were not provided with an
opportunity to address the issues related to that specific allegation as it formed part of the
reasons for dismissal.
[243] It is significant that Nyrstar relied upon matters that did not form the reasons for
dismissal at the time it dismissed Mr Cannan and then Mr Fuller. Nyrstar relied on allegations
that were never contemplated or raised as part of the dismissal process. Whilst Mr Wilson-
Haffenden referred to a CFMEU official that there were more statements, this act did not
afford fairness to Mr Cannan or Mr Fuller. Whilst Nyrstar argued that there had been previous
allegations letters and that the CFMEU should have asked for more information, the
obligation was on Nyrstar to provide the information so the Applicants could respond fully.
The contents of the 12 statements did not form part of the reasons contained within the ‘show
cause’ letters or meetings and as such I have concluded this omission renders the termination
process procedurally unfair.
[244] Further, the letters of termination199 evidenced the specific findings of Mr Simmons
with no mention of the substituted findings that Nyrstar made in relation to general allegation
3. Also the terminations letters stated “In reaching this decision to terminate your
employment, we have taken into account all the available information, your employment
history, your conduct and response to investigation outcomes.” Again there is no mention of
the additional information from the 12 statements. This amounted to a procedural error.
Contrition
[245] It is clear that without disclosure of the 12 statements the Applicants were, unable to
provide the contrition Nyrstar craved at the time of the ‘show cause’ meetings, through their
inability to fully understand the impact of their conduct.200 On the evidence of contrition
provided by Mr Fuller during his interview with Mr Simmonds, and particularly that provided
by Mr Cannan under cross-examination, I am satisfied that both Applicants have express
contrition and were sincere in their endeavours. Further, Nyrstar’s failure to identify the issue
of contrition in the ‘show cause’ letters or meetings served to further disadvantage the
Applicants in the dismissal process, particularly as Mr Wilson-Haffenden said any contrition
expressed would have been a material consideration for Nyrstar. I am of the view that the
omission of contrition as a matter to be responded to at the ‘show cause’ meetings was a
procedural error on the part of Nyrstar.
[2014] FWC 5072
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[246] Whilst it does not change the behaviour, it is relevant that both Applicants stated they
had no intention of bullying anyone, that they had never been told to stop the behaviour and
had never been warned about the behaviour.
[247] Procedural fairness is an important consideration and should not be lightly cast aside.
Its proper application ensures a robust and just process for those involved.
[248] I have concluded these were significant failures to accord fairness in the dismissal
process that placed the Applicants at a considerable disadvantage to be able to show cause as
to why their employment should not be terminated.
s.387(d) Unreasonable refusal to allow a support person
[249] Mr Cannan and Mr Fuller were not refused the right to have a support person present
throughout the investigation and this did not affect the dismissal process.
s.387(e) Warnings regarding unsatisfactory performance
[250] Mr Cannan and Mr Fuller were not warned about any alleged unsatisfactory
performance in the manner intended by s.387(e), namely by warning or counselling, so that
‘deficient’ performance could be rectified or addressed.
[251] Nyrstar viewed s.387(e) as having no relevance in this matter as the Applicants were
dismissed for misconduct and not unsatisfactory performance, although there was some
dispute as to ongoing behaviour being a matter of performance in the workplace. Both parties
submitted that these issues were capable of being dealt with, in any event, under s.387(h)
‘other matters’ and I do so below.
s.387(f) Impact of the size of Nyrstar on procedures followed
[252] Nyrstar is a large business with in excess of 400 direct employees. Documentary
evidence submitted in the matter indicates considerable policy and procedure documentation.
I have determined the size of Nyrstar’s enterprise did not impact the dismissal procedures
followed.
s.387(g) Absence of dedicated human resources management expertise on procedures
followed
[253] Nyrstar has a dedicated human resource function with a Human Resource Manager
and Superintendent, both working at the Risdon Smelter site. The absence of such a function
is not relevant in this matter.
s.387(h) other relevant matters
Person Impact
[254] The personal impacts of most terminations of employment are significant. This is
certainly so in the circumstances of this case. Both Applicants are aged 50 years or older and
have worked in the one job for the one employer for 18 years. Coupled with their specific
[2014] FWC 5072
42
skill set, I am of the view both Mr Cannan and Mr Fuller will find it difficult to obtain full
time employment. This is however, as submitted by Nyrstar, only one factor in determining
whether a dismissal is harsh, unjust or unreasonable.
Condonation
[255] The principle behind the Applicants’ submission of condonation is that an employer,
with full knowledge of an employee’s misconduct and continues to employ him, cannot later
rely on that misconduct to dismiss the individual. Thus, by knowing the behaviours of Mr
Cannan and Mr Fuller and electing to continue the employment of them, Nyrstar ‘condoned’
their conduct and ‘waived’ the right to terminate their employment contracts.201
[256] The practical manifestation of this principle in the employment context is that a
wronged party has the right to elect, in the face of a breach of a condition of an employment
contract, either to continue the contract or terminate it for breach. In order for condonation to
be present, an employee must provide that:
the employer had full knowledge of the conduct;
despite this, the employer retains the employee’s services; and
with this election, the employer has deliberately given up the right to dismiss the
employee summarily.202
[257] In B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB
6191, the Full Bench held at [42]:
“Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or
unreasonable fall into three broad categories:
(1) The act or omissions that constitute the alleged misconduct on which the employer relied
(together with the employee’s disciplinary history and any warnings, if relied upon by the employer at
the time of dismissal) but otherwise considered in isolation from the broader context in which those
acts of omissions occurred.
(2) The broader context in the workplace in which those acts or omissions occurred. [This may
include such matters as a history of toleration or condonation of the misconduct by the employer or
inconsistent treatment of other employees guilty of the same misconduct.] (my emphasis)
(3) The personal or private circumstances of the employee that bear upon the substantive fairness
of the dismissal. [This includes, matters such a length of service, the absence of any disciplinary
history and the harshness of the consequences of dismissal for the employee and his or her
dependents.]”
[258] It is clear that condonation is a relevant consideration in determining whether a
dismissal is harsh, unjust or unreasonable.
[259] There was considerable evidence on the part of Mr Wells that as Superintendent of
Casting, he was aware in the early 2000s about the behaviours of members of D-panel,
including him substituting one Team Leader for another, due to burn out.203 Mr Wells
continued to have these concerns, along with other managers at Nyrstar, however no one ever
dealt with the behaviour or invoked disciplinary procedures. Two safety officers of Nyrstar
described what they believed to be unsafe behaviour; however neither of them took action to
have the behaviour dealt with.
[2014] FWC 5072
43
[260] Mr Rainbird said senior managers had expressed concerns to him about running
communication sessions with D-panel and Mr Mudge’s evidence was that the Leadership
Group in Casting discussed the problems and culture with D Panel but the situation was allowed to
persist.204
[261] Nyrstar’s submissions that Team Leaders were ‘on the floor’ trying to meet the
expectations of management, and upper management were not engaging unless Team Leaders
requested assistance, only supported, in my view, the existence of unacceptable management
practices that supported an unwanted culture.
[262] The evidence205 of Mr Wells, Mr Rainbird and most of the previous Team Leaders of
D-panel provided that over the long history of this matter, there was a tolerance or acceptance
of the conduct of the Applicants. Previous Team Leaders of D-panel and Senior Managers
said they did not consider the conduct of Mr Fuller and Mr Cannon serious enough to warrant
disciplinary action.
[263] I have concluded that Nyrstar management had full knowledge of the conduct of the
Applicants, that despite this they not only retained the Applicants’ services, they did nothing
about the conduct and that accordingly, Nyrstar had deliberately given up the right to dismiss
the Applicants summarily for that behaviour.
Management inaction
[264] The disputes over crib times and job rotation lay at the heart of the relationship
between members of D-panel and their Team Leader Mr Fraraccio. The failure of Nyrstar to
deal with those matters effectively and efficiently created significant pressure within the
workplace, which festered and fed, in my view, an environment of little respect on either side.
An example of this was the inability of any Nyrstar witness to confirm what actions had been
taken by the company to resolve the formal dispute that was invoked by Mr Fuller on 20 May
2013. Mr Wilson-Haffenden, Ms Newton and Mr Fraraccio failed to progress the dispute to
any level after receiving a copy of the dispute form.
[265] Nyrstar’s evidence was that they, together with Mr Fraraccio, wished to have D-panel
rotate fewer jobs. This had been an on-going matter for a number of years and was seen as a
serious issue. However despite this, Nyrstar management never attempted to have the dispute
resolved through the dispute resolution procedure.
Unsatisfactory behaviour/performance
[266] Both Mr Cannan and Mr Fuller had substantially unblemished employment with
Nyrstar over some 18 years, having received satisfactory or good performance appraisals. The
evidence of many of the previous Team Leaders did not accord with the performance reviews
conducted on the Applicants and that none of the conduct complained of attracted disciplinary
action of any kind or any pro-active management at the time it was said to have occurred. I
found this evidence difficult to reconcile. Having regard to all of the evidence of these Team
Leaders, I have concluded, on the balance of probability, they were lacking in the skills and
training required to properly conduct a frank and transparent performance review process.
That said, it was entirely appropriate for the Applicants to rely on the performance reviews
and for them to consider they were conducting themselves satisfactorily.
[2014] FWC 5072
44
[267] Further any conduct that was considered to be unsatisfactory in the workplace is
catered for under Nyrstar’s Performance Improvement and Disciplinary Policy and states that
generally employees will be provided with an opportunity for improvement and that action
should be taken in a timely manner. Whilst it is common ground that the Applicants were not
dealt with under this policy and was not afforded an opportunity change their behaviour,
Nyrstar submitted that the Applicants had an opportunity during the investigation process to
accept their behaviour was wrong, but failed to do so. I am of the view that Nyrstar, by way of
failing to deal with any of the conduct complained of in a contemporaneous manner, failed in
its obligation to allow the Applicants an opportunity to understand and change their
behaviour, which added to the procedural deficiencies in these dismissals
Conclusion as to merits
[268] Following consideration of each of the matters specified in s.387, I have concluded
that there was a valid reason for the Applicants’ dismissals by reason of their misconduct. Mr
Cannan had, what I consider, an unblemished employment history. Whilst Mr Fuller’s
disciplinary history is not without incident, the last formal matter was some 8 years ago and is
not significant when applying ‘the standard of men not angels’.206 Given their 18 years’
service to Nyrstar, ages at the time of dismissal, family dependent responsibilities, the denial
of procedural fairness in effecting the dismissals, my findings on the condonation by Nyrstar
and lack of managing the behaviour, I am satisfied the conduct did not justify summary
dismissal. I find the dismissals of both Mr Fuller and Mr Cannan were harsh.
Remedy
[269] Section 390 describes the circumstances of when a remedy order may be made:
When the FWC may order remedy for unfair dismissal
(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.
[270] The jurisdictional preconditions in s390(1)(a) and (b) are satisfied and I will now
consider whether to order the reinstatement of Mr Cannan and Mr Fuller or, if reinstatement is
inappropriate, whether in all the circumstances, it is appropriate to order payment of
compensation to the Applicants.
Reinstatement as the primary remedy for an unfair dismissal
[271] Subsection 390(3) provides the primacy of reinstatement as a remedy for an unfair
dismissal with compensation only to be ordered where the FWC considers reinstatement
inappropriate. Part 3-2 of the Act, which contains the unfair dismissal provisions, evidences
that an object of that Part, at s.381(1)(c), is “to provide remedies if a dismissal is found to be
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#reinstatement
http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s394.html
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#made
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#unfairly_dismissed
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#unfairly_dismissed
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#dismissed
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#protected_from_unfair_dismissal
http://www5.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#reinstatement
[2014] FWC 5072
45
unfair, with an emphasis on reinstatement.” The question in determining whether to grant
reinstatement of an employee who has been unfairly dismissed is whether that is appropriate
in the particular case.
[272] Nyrstar advanced the argument that reinstatement is inappropriate in this matter as
there had been a loss of trust and confidence, so as to make impossible any re-establishment
of the employment relationship with the Applicants. This argument is not uncommon in unfair
dismissal matters. Loss of trust and confidence concerns what is essential to make an
employment relationship work. In Australasian Meat Industry Employees’ Union v G & K
O’Connor Pty Ltd207 Gray J observed that the development of law relating to the employment
relationship and trust and confidence started when that relationship customarily involved a
close personal relationship between employer and employee, but that the importance of trust
and confidence has diminished with the rise of corporate employers.208 That is not to say that
trust and confidence is not important, however an assessment must be made as to the likely
effect of any loss of trust and confidence on workplace operations and all circumstances must
be taken into account.
[273] Relevant to this the Full Court of the Industrial Relations Court under the Workplace
Relations Act 1996 in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 said of a
reinstatement remedy at 191:
“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.”
[274] The more recent Fair Work Australia Full Bench decision in Regional Express
Holdings Limited v Richards [2010] FWAFB 8753 also observed at paragraph [26]:
“Whenever an employer dismisses an employee for misconduct, assuming the employer
is acting honestly, there is an implied loss of trust and confidence in the employee. If it
is subsequently found that the termination was harsh, unjust or unreasonable it is
[2014] FWC 5072
46
appropriate to consider whether the relationship can be restored if the employee is
reinstated. That question cannot be answered solely by reference to the views of
management witnesses. All of the circumstances should be taken into account.”
[275] The conclusions of the Full Benches in Perkins and Regional Express relating to the
appropriateness of reinstatement continue to have currency and I adopt them in forming my
decision whether an order reinstating the Applicants is appropriate.
Is reinstatement appropriate?
[276] The Risdon Smelter remains operational with a large number of employees and
contractors on site. No matters were put to me that indicated reinstatement would result in
either Mr Cannan or Mr Fuller being surplus to Nyrstar’s business requirements. This is
clearly a factor which goes to the question of the appropriateness of reinstatement.209 No
matters have been brought to my attention that indicated undisclosed serious misconduct
which would almost certainly lead to a further termination of the Applicants’ employment.
There was no evidence of a material incapacity on the part of either Mr Cannan or Mr Fuller
that would affect the further performance of their contractual obligations.210
[277] Both Mr Cannan and Mr Fuller were Operators within Casting at the Nyrstar Risdon
Smelter, responsible for operation of plant in the production of zinc. These positions do not
have any managerial responsibilities. As is apparent from my earlier findings, whilst there
existed a culture within D-panel that had been fostered by Nyrstar’s inaction, both Mr Fuller
and Mr Cannan breached Nyrstar’s Code of Business Conduct in their dealings with their
Team Leader, Mr Fraraccio and others. There was an obligation on them to conduct
themselves in accordance with the principles of that Code. The inaction of Nyrstar added to
the Applicants’ lack of understanding of the effect of their conduct. Having regard to the
contrition expressed by both Mr Cannan in cross-examination and by Mr Fuller in the
interview with Mr Simmonds, I am satisfied that both Applicants are now cognisant of their
conduct and are capable of change.
[278] The decision of Anning, on which Nyrstar sought to rely, differs from these matters in
that many of these allegations were old and neither of the Applicants denied raising issues
many times or challenging their management. Having considered Anning, I note that decision
provides that each case runs on its own particular set of circumstances and warned against an
employer relying on behavioural excesses over a lengthy period.
[279] There was nothing that was put to me that would indicate an irreparable breakdown in
the trust and confidence relationship between the employer and the Applicants and I am of the
view that it is appropriate to order the Applicants’ reinstatement.
Conclusion
[280] I am satisfied that Mr Cannan’s and Mr Fuller’s dismissals were harsh.
[281] I have concluded that in all the circumstances reinstatement of both Mr Cannan and
Mr Fuller is appropriate to another position on terms and conditions no less favourable than
those on which they were employed immediately before the dismissals. I have also
determined it appropriate to maintain the continuity of Mr Fuller’s and Mr Cannan’s
employment and that their period of continuous service is maintained.
[2014] FWC 5072
47
[282] To enable assessment of lost pay relevant in these matters, the parties are required to
provide written submissions relevant to the issues contained in s.391(3) and (4) of the Act.
Directions of the provision of these submissions are issued separately.
[283] An order giving effect to this decision will be issued, following receipt of the
submissions requested above. Should a conference to affect an orderly return of the
Applicants to the workplace be considered appropriate, I am available at the request of either
of the parties.
DEPUTY PRESIDENT
Appearances:
Mr R Reitano, for the Applicants
Ms S Zeitz, for Nyrstar, the Respondent
Hearing details:
Hobart
2014
3, 4, 5 June and 1, 2, 3, 4 July
Final written submissions:
2014
25 August
Printed by authority of the Commonwealth Government Printer
Price code J, PR553610
1
Exhibit R4 – Statement of Timothy Wilson-Haffenden, 7 April 2014 Attachments TWH-29 and TWH-32
2
Transcript – PN70-72
3
Exhibit A1 – Statement of Marshall Reeves, 28 April 2014Attachment MRR-1
4
Transcript, PN2794, 2795 and 2805
5
Exhibit R4 – Attachment TWH-24
6
Exhibit R4 – Attachments TWH-29 and TWH-32
7
Exhibit A1
8
Exhibit A2 – Statement of Noel Cannan, 28 April 2014
9
Exhibit A4 – Statement of Kevin Fuller, 28 April 2014
10
Exhibit A5 – Statement of Gardner Cox, 28 April 2014
OF FAIR WINA C K COMMISSION THE SI TH
[2014] FWC 5072
48
11
Exhibit R3 – Statement of Victoria Newton, 7 April 2014
12
Exhibits R4 & R21 – Supplementary statement of Tim Wilson-Haffenden, 26 May 2014
13
Exhibit R5 – Statement of Craig Wells, 29 May 2014
14
Exhibit R6 – Statement of Joshua Fraraccio, 7 April 2014
15
Exhibit R7 – Statement of William Hinds, 13 June 2013
16
Exhibit R8 – Statement of Kerry Seabourne, 28 August 2013
17
Exhibit R9 – Statement of Steven Phillips, 7 July 2014
18
Exhibit R10 – Statement of Cade Terry, 29 August 2013
19
Exhibit R11 – Statement of Adrian Mudge, 29 August 2013
20
Exhibit R12 – Statement of Ricky Schultz, 8 May 2014
21
Exhibit R13 – Statement of David King, 1 August 2013
22
Exhibit R14 – Statement of Stuart Moore, 29 August 2013
23
Exhibit R15 – Statement of Alexandra Williams, 16 August 2013
24
Exhibit R16 – Statement of Grant Seward, 12 May 2014
25
Exhibit R17 – Statement of Terence Hinds, 2 May 2014
26
Exhibit R18 – Statement of Craig Rainbird, 7 April 2014 with attachments CR-2A and CR2B & Exhibit R19 – Supplementary Statement
of Craig Rainbird, 23 May 2014
27
Exhibit R15, paragraph 6
28
Transcript, PN 2541-2542
29
Transcript, PN4962
30
Exhibit R6 – Attachment JF-9
31
Transcript, PN4563, PN4574
32
Exhibit A2 – paragraph 12
33
Exhibit A2 – paragraph 9
34
Transcript, PN4499
35
Transcript, PN5142, PN5150, PN5152
36
Transcript, PN5195
37
Transcript, PN2680, PN1171
38
Transcript, PN2662
39
Transcript, PN4815
40
Exhibit R11, paragraph 27
41
Transcript, PN5070-5073, PN5087-5088, PN5083
42
Transcript, PN5896
43
Transcript, PN6272
44
Transcript, PN6814
45
Exhibit R7, paragraph 18
46
Transcript, PN4768-4770, PN4766
47
Transcript, PN4072
48
Exhibit R3, Attachment VN-8
49
Transcript, PN4274
50
Transcript, PN732
51
Transcript, PN4236-4237
52
Transcript, PN4309
53
Exhibit R6, paragraph 46
54
Exhibit R18, paragraph 54
55
Transcript, PN1882
56
Transcript, PN6714
[2014] FWC 5072
49
57
Exhibit R18, paragraph 50
58
Transcript, PN779 -782
59
Transcript, PN2411
60
Exhibit R18 – Attachments CR-2A, paragraph 25 & CR-2B, paragraph 5
61
Exhibit R6, paragraph 19
62
Exhibit R6, paragraph 27
63
Transcript, PN2585
64
Transcript, PN2590, PN2604
65
Transcript, PN5432
66
Transcript, PN5303
67
Exhibit R12 – Attachment RDS-1, paragraph 11.
68
Exhibit R10, paragraph 20
69
Exhibit R11, paragraph 7
70
Transcript, PN6417, PN6415-6416
71
Transcript, PN5144
72
Exhibit R6, paragraphs 63 and 64
73
Exhibit A2 – paragraph 14
74
Exhibit A5 – paragraph 4
75
Transcript, PN5912
76
Transcript, PN1026
77
Transcript, PN5309
78
Transcript, PN4751
79
Transcript, PN1295
80
Transcript, PN1022
81
Exhibit A2 – Attachment NAC-2
82
Transcript, PN1060
83
Transcript, PN937
84
Exhibit R6, paragraphs 31
85
Exhibit A4 – paragraph 15
86
Exhibit R6, Attachment JF-2
87
Exhibit R6, paragraph 37
88
Transcript, PN4455-4456
89
Transcript, PN5949, PN5954
90
Transcript, PN1778-1779
91
Transcript, PN1773
92
Exhibit A3
93
Transcript, PN6843
94
Transcript, PN2001
95
Exhibit R2 – Progressive Discipline Report, Zinifex Ltd, employee Kevin Fuller, dated 5 July 2006
96
Exhibit R21 – Supplementary Statement of Tim Wilson-Haffenden, dated 26 May 2014, paragraph 22
97
Transcript, PN1795
98
Transcript, PN1808
99
Exhibit A4 – Attachment KMF-2, Nyrstar Hobart Smelter Performance Based Pay Performance Review Form Operator, Kevin Fuller
100
Exhibit R6 – Attachments JF-4 and JF-7
101
Exhibit R7, paragraph 13
102
Exhibit R9, paragraph 15
103
Transcript, PN5296
[2014] FWC 5072
50
104
Exhibit R17 – Attachment TH-1, paragraph 7
105
Transcript, PN1756
106
Transcript, PN4320, PN4332
107
Transcript, PN4416-4418, PN4437
108
Exhibit R21, paragraphs 17 to 27
109
Transcript, PN4348, PN4540
110
Transcript, PN4434, PN4363
111
Transcript, PN5757-5758
112
Exhibit R12 – Attachment RDS-2 to RDS-5
113
Transcript, PN1360
114
Exhibit R16, paragraphs 10 to 13
115
Exhibit R19, paragraph 6
116
Transcript, PN6870
117
Transcript, PN2844
118
Exhibit R4, paragraph 19
119
Exhibit R3, Attachment sVN-12, VN-13, VN-14
120
Exhibit R3, paragraph 35
121
Exhibit A3
122
Exhibit R4, paragraph 29 and Attachment TWH-9
123
Exhibit R3, paragraph 50
124
Exhibit R3, Attachment VN-31
125
Exhibit R4 – Attachment TWH-12
126
Exhibit R4 – Attachment TWH-13
127
Exhibit R4, paragraph 45
128
Exhibit R4 – Attachment TWH-15
129
Exhibits A6 & A7
130
Transcript, PN3438-3439
131
Exhibit R4 – Attachment TWH-19
132
Exhibit R4 – Attachment TWH-24
133
Exhibit R4 – Attachment TWH-20
134
Exhibit R4 – Attachment TWH-21
135
Exhibit R4 – Attachment TWH-25
136
Transcript, PN3347
137
Transcript, PN1558
138
Transcript, PN3369
139
Transcript, PN3886-3887
140
Transcript, PN3857
141
Transcript, PN2345
142
Exhibit R4, paragraph 66
143
Transcript, PN3291-3292
144
Exhibit A4, paragraph 31 & Exhibit A8 – Transcribed section of interview with Mr Simmonds
145
Exhibit R4, paragraphs 63 and 67
146
Transcript, PN3198-3199
147
Transcript, PN3214
148
Transcript, PN3931
149
Transcript, PN3216
150
Transcript, PN3267, PN3277
[2014] FWC 5072
51
151
Exhibit A8 – Transcript of Mr Fuller’s apology during interview with Mr Simmonds
152
Transcript, PN3882
153
Transcript, PN1150-1151
154
Exhibit R5 – paragraph 12, Attachment CGW-1, page 1, paragraph 3 and page 6, paragraph 46
155
Exhibit R5 – Attachment CGW-1, page 7, paragraph 4
156
Exhibit R5, paragraphs 5 and 6
157
Transcript, PN4027
158
Exhibit R5 – Attachment CGW-1, page 3, paragraph 18 and page 10, paragraphs 22 and 23
159
Transcript, PN4037, PN4097 and PN4088-4089
160
Exhibit R7, paragraph 5
161
Transcript, PN4893, PN4899, PN4909-4910, PN4914
162
Transcript, PN4944-4946, PN4949
163
Exhibit R11, paragraphs 28 and 29
164
Exhibit R12, paragraph 29
165
Exhibit R14, paragraph 6
166
Exhibit R14, paragraph 13
167
Transcript, PN6019
168
Transcript, PN6373-6377
169
Transcript, PN6546-6547
170
Exhibit R18 – Attachment CR-2A, paragraph 31
171
Exhibit R18 – Attachment CR-2A, paragraph 5
172
Transcript, PN6818-PN6821
173
Transcript, PN295
174
Transcript, PN1838
175
Transcript, PN4475-4477
176
Transcript, PN4408
177
Exhibit R6, paragraph 10
178
Exhibits A8 & R20 – part of Respondent’s outline of submissions
179
Transcript, PN674 & 675
180
Transcript, PN1667-1668
181
Transcript, PN123
182
Transcript, PN 129 & 130
183
Transcript, PN1252
184
Exhibit A10 – Applicants’ written closing submissions, paragraph 13
185
Exhibit R4, paragraph 63
186
Transcript – PN1415, PN1482
187
Exhibit A1 – Attachment MRR-1, clause 2.4.2
188
Transcript – Ms Zeitz, PN2705
189
Transcript – Ms Zeitz, PN2707
190
Transcript, PN7151
191
Exhibit R4 – Attachment TWH-31
192
Transcript, PN7187
193
Transcript, PN 7217
194
R20, paragraph 26
195
Exhibit R4 – Attachment TWH-24
196
Fair Work Act 2009, s.789FD(1) and (2)
197
Exhibit R4 – Attachment THW-19, page 3
[2014] FWC 5072
52
198
Exhibit R4 – Attachment TWH-25
199
Exhibit R4 – Attachments THW-29 & TWH-32
200
Exhibit R4, paragraph 66
201
Howard v Pilkington (Australia) Ltd [2008] VSC 491 at [49] citing Rankin v Marine Power International Pty Ltd [2001] VSC 150.
202
Ibid.
203
Exhibit R5, paragraphs 5 & 6
204
Exhibit R11, paragraphs 28 and 29
205
Exhibit R11, paragraph 29, Exhibit R14 paragraph 13, Exhibit R15 Attachment CR-2A paragraphs 5 & 31
206
Jupiter General Insurance v Shroff [1937] 3 All ER 67 at 74
207
[2000] FCA 627
208
Ibid at [42]
209
See Newtronics Pty Ltd v Salenga, AIRC Full Bench, PR4305
210
See Smith v Moore Paragon, AIRC Full Bench, PR942856
