1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Kedwell
v
Coal & Allied Mining Services Pty Limited T/A Mount Thorley
Operations/Warkworth Mining
(U2016/1284)
COMMISSIONER SAUNDERS NEWCASTLE, 9 SEPTEMBER 2016
Application for relief from unfair dismissal – application dismissed
[1] There is no question that an employee (X1) of Coal & Allied Mining Services Pty Ltd
(Mt Thorley) has been bullied in a serious and unacceptable way by people with whom he
worked. The primary question in this case is whether the applicant, Mr Scott Kedwell, was
involved in the bullying of X. In particular, it is alleged that on 11 February 2016 Mr
Kedwell, in concert with Mr Brendan Neuss and Mr Zachary Fay, left the workplace and
deliberately drove their cars in such a way to block X from being able to make a right hand
turn off the Golden Highway into the Mitchell Line of Road. Mr Kedwell admits that he was
driving behind and next to X at different points on the Golden Highway on their way home
from work and that X did not turn right, as he normally would, into the Mitchell Line of
Road. However, Mr Kedwell denies that he acted with any intent to prevent X from being
able to make the right hand turn.
[2] Mt Thorley conducted an investigation in relation to the incident on 11 February 2016.
Mt Thorley concluded that the alleged conduct had occurred. Mr Kedwell and Mr Neuss were
dismissed. Mr Fay was issued with a final written warning. Mr Kedwell contends that his
dismissal was harsh, unjust and unreasonable. Mt Thorley denies those allegations.
The Hearing
[3] This matter was heard by me over two days on 24 and 25 August 2016 (inclusive). Mr
Kedwell gave evidence on his own behalf. He also called evidence from Mr Fay. Mt Thorley
called evidence from X, Mr Ian Mullard, Mr Matthew Still, Mr Steven Flannery, Mr Stuart
Bower and Mr Stephen Jackson. Mr Kedwell’s counsel cross examined X but did not require
1 I have deliberately not included in this decision the name of the employee bullied at work because (a) there is no dispute
about the identity of the employee or the fact that he was bullied at work, (b) the employee was compelled to give
evidence in these proceedings by reason of an order from the Commission, (c) the employee has suffered enough already,
and (d) I am concerned that publishing a decision in which the employee is identified by his name will increase the risk
of future bullying against him, either in or outside the workplace.
[2016] FWC 6018
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 6018
2
any of Mt Thorley’s other witnesses, each of whom had filed and served a witness statement,
for cross examination.
[4] In making my decision in this matter I have had regard to all of the evidence adduced
by and on behalf of Mr Kedwell and Mt Thorley, together with the opening and closing
submissions made by each party.
Initial matters to be considered
[5] I am required by s.396 of the Fair Work Act 2009 (Cth) (the Act) to decide four
matters before I consider the merits of Mr Kedwell’s application. There is no dispute between
the parties and I am satisfied on the evidence that:
(a) Mr Kedwell’s application was made within the period required by s.394(2) of the Act;
(b) Mr Kedwell was a person protected from unfair dismissal;
(c) Mt Thorley was not a “small business employer” as defined in s.23 of the Act, so that
the Small Business Fair Dismissal Code was inapplicable; and
(d) Mr Kedwell’s dismissal was not a case of genuine redundancy.
Was Mr Kedwell’s dismissal unfair?
[6] I am required by s.387 of the Act to take into account the matters specified in
paragraphs (a) to (h) of the section in considering whether Mr Kedwell’s dismissal was harsh,
unjust or unreasonable. I will address each of these matters in turn below.
Was there a valid reason for Mr Kedwell’s dismissal (s.387(a))?
Legal principles
[7] The employer must have a valid reason for the dismissal of the employee, although it
need not be the reason given to the employee at the time of the dismissal.2 The reason for the
dismissal should be “sound, defensible and well founded”3 and should not be “capricious,
fanciful, spiteful or prejudiced”.4
[8] The Commission will not stand in the shoes of the employer and determine what the
Commission would do if it was in the position of the employer.5 The question the
Commission must address is whether there was a valid reason for the dismissal related to the
employee’s capacity or conduct (including its effect on the safety and welfare of other
employees).6
2 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
3 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
4 Ibid
5 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
6 Ibid
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
[2016] FWC 6018
3
[9] In cases relating to alleged conduct, the Commission must make a finding, on the
evidence provided, whether, on the balance of probabilities, the conduct occurred.7 It is not
enough for an employer to establish that it had a reasonable belief that the termination was for
a valid reason.8
[10] In cases, such as the present, where allegations of serious misconduct are made, the
standard of proof in relation to the alleged conduct remains the balance of probabilities but
"the nature of the issue necessarily affects the process by which reasonable satisfaction is
attained"9 and such satisfaction "should not be produced by inexact proofs, indefinite
testimony, or indirect inferences"10 or "by slender and exiguous proofs or circumstances
pointing with a wavering finger to an affirmative conclusion".11 Put another way, the
application of the Briginshaw standard means that I should not lightly make a finding that an
employee engaged in the misconduct alleged against him or her.12
[11] Proof of any fact on the balance of probabilities can be established by circumstantial
evidence;13 that is, by proof of primary, or intermediate, facts from which the court or tribunal
infers a further fact.14 The primary facts can themselves be the product of inference from
other facts.
[12] A fact may be proved by inference if according to common experience the fact is the
more probable inference from the unexplained primary facts.15 Certainty is never possible,
and is not required.16
[13] In considering whether circumstances have been proven in which it is reasonable to
find a balance of probabilities in favour of the conclusion sought, the court or tribunal must
consider the accumulation of the evidence. This means not only evaluating each of the factual
contentions separately but also forming an appreciation of the overall effect of the whole of
the evidence.17
[14] A court or tribunal may draw an inference from a combination of intermediate facts,
even if none of them in isolation would support the inference.18 It also means that:19
“[a] true picture is to be derived from an accumulation of detail. The overall effect of
the detailed picture can sometimes be best appreciated by standing back and viewing it
from a distance, making an informed, considered, qualitative appreciation of the
whole. The overall effect of the detail is not necessarily the same as the sum total of
the individual details.”
7 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213
[24].
8 Ibid
9 Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363
10 Ibid per Dixon J at p 362
11 Ibid per Rich J at p 350
12 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
13 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 (Seltsam) at [90]
14 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 579
15 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 6
16 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141
17 Clay v Clay [1999] WASCA 8; (1999) 20 WAR 427 at [55]
18 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 536
19 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141
http://www.austlii.edu.au/au/cases/cth/HCA/1984/7.html
http://www.austlii.edu.au/au/cases/wa/WASCA/1999/8.html
http://www.austlii.edu.au/au/cases/cth/HCA/1990/56.html
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2000/29.html
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/King%20v%20Freshmore%20(Vic)%20Pty%20Ltd%20-%20Print%20S4213%20-%20highlighted.pdf
[2016] FWC 6018
4
[15] As Spigelman CJ discussed in Seltsam,20 “causation, like any other fact can be
established by a process of inference which combines primary facts like ‘strands in a cable’
rather than ‘links in a chain’”.
Valid reasons contended for by Mt Thorley
[16] Mt Thorley contends that Mr Kedwell acted deliberately on 11 February 2016 to block
X from being able to turn right from the Golden Highway to the Mitchell Line of Road, and
by so doing Mr Kedwell breached:
(a) his obligation under clauses 4.15 and 6.1 of Rio Tinto’s Code of Conduct to not
engage in conduct that would be regarded by a reasonable person as offensive or
unacceptable; and
(b) his obligation under clauses 2.1 and 2.4 of Rio Tinto’s Anti-Discrimination, Sexual
Harassment and Bullying Policy to be accountable for his behaviour and not to bully
another worker.
[17] The significance of breaches of employer policies in the context of a consideration of
whether there was a valid reason for dismissal was discussed by the Full Bench majority in B,
C and D v Australian Postal Corporation T/A Australia Post21 as follows:
“[35]... as indicated by Northrop J in Selvachandran, "valid reason" is assessed from the
perspective of the employer and by reference to the acts or omissions that constitute
the alleged misconduct, on which the employer relied, considered in isolation from the
broader context in which they occurred. It is the reason of the employer, assessed from
the perspective of the employer that must be a "valid reason" where "valid" has its
ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the
requirement for a "valid reason" should not impose a severe barrier to the right of an
employer to dismiss an employee.
[36] A failure to comply with a lawful and reasonable policy is a breach of the
fundamental term of the contract of employment that obliges employees to comply
with the lawful and reasonable directions of the employer. In this way, a substantial
and wilful breach of a policy will often, if not usually, constitute a "valid reason" for
dismissal.”
Factual findings
[18] During the period of about two years prior to Mr Kedwell’s dismissal on 17 March
2016, there is no dispute and I find on the evidence that X was subjected to the following
unreasonable conduct at the workplace:
(a) putting rocks in his bag;
(b) hiding his bag;
20 At [91]
21 [2013] FWCFB 6191
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb6191.htm
[2016] FWC 6018
5
(c) Mr Neuss painted X’s workboots and workpants while he was wearing them; and
(d) making jokes at his expense.
[19] X did not complain to his employer about this conduct. He put up with it and sought to
get on with his job. As X explained to Mr Still, Maintenance Superintendent:
“… I don’t know why they keep playing pranks on me. I don’t know what I am doing or
saying that might cause it.
I just want to come to work, do what the supervisor tells me, then go home. I don’t
want to be the black sheep of the team.”
[20] Although X does not know for certain why he has been targeted in this way, he has
been told by Mr Neuss and Mr Fay to “stop doing what you’re doing, stop working how you
do, you’re breaking down our conditions”.22 X agreed that this comment is probably a
reference to his work ethic and the amount of work he gets through during a shift. Regardless
of the motive for the unreasonable conduct against X, it should not be happening.
[21] X, Mr Kedwell, Mr Neuss and Mr Fay are all part of the Field Maintenance team at Mt
Thorley. Mr Kedwell, Mr Neuss and Mr Fay were, at least in the period prior to Mr Kedwell’s
dismissal, friends. So much is clear from the fact that they used to go to the pub together from
time to time after work and both Mr Kedwell and Mr Fay went around to Mr Neuss’ house on
22 February 2016 to congratulate Mr Neuss on the birth of his child. This meeting at Mr
Neuss’ house is discussed in more detail below.
[22] X works for Mt Thorley in the role of Mechanical Maintainer. Mr Fay works for Mt
Thorley in the role of Electrical Maintainer. Prior to his dismissal, Mr Neuss worked for Mt
Thorley in the role of Mechanical Maintainer. Mr Kedwell is a fitter by trade, but in the 12
months prior to his dismissal he worked for Mt Thorley in the role of Field Maintenance
Training, reviewing Mt Thorley’s procedures and policies in relation to safety.
[23] On 11 February 2016, each of X, Mr Kedwell, Mr Neuss and Mr Fay worked the day
work shift from 6:30am until 6:30pm.
[24] On the afternoon of 11 February 2016, X, Mr Fay and Mr Neuss were undertaking
maintenance work on an excavator. At about 2:30pm, X says that he had two rags coated with
petroleum jelly thrown at him and one of the rags struck him in the head and knocked his
helmet off.23 X also says that he did not see who threw the rags. These parts of X’s evidence
are not disputed and I am satisfied that X’s evidence in relation to them should be accepted as
truthful and reliable.
[25] X also says that after the rags were thrown at him he looked up and saw Mr Neuss and
Mr Fay laughing. X says he then walked up to Mr Neuss and Mr Fay and said to them words
to the effect: “Cut it out. I have had enough.” Mr Fay denies throwing the rags, or either of
them, and denies laughing. Mr Neuss did not give evidence in these proceedings.
22 PN1059
23 PN832
[2016] FWC 6018
6
[26] I found X to be an impressive witness. Notwithstanding the fact that he has suffered
repeated unreasonable conduct in the workplace, which (understandably) has upset him, he
remained composed and calm while giving evidence in these proceedings. He answered the
many questions asked of him in a direct and responsive manner. He made appropriate
concessions. He also has a good recollection of the events of 11 February 2016. There is no
suggestion that X had, or has, any animus towards Mr Kedwell or Mr Fay. Contrary to the
submissions made on behalf of Mr Kedwell, I am satisfied that X gave a broadly consistent
version of events each time he explained what happened during the investigation process and
in his oral evidence in these proceedings. The differences between the various accounts to
which Mr Kedwell points are, in my view, minor details and do not adversely impact the
reliability or credibility of his evidence. I am satisfied that X is a truthful and reliable witness.
Where X’s evidence conflicts with that of Mr Kedwell and/or Mr Fay, I prefer X’s evidence. I
make specific comments and findings in relation to the credibility and reliability of the
evidence given by Mr Kedwell and Mr Fay in paragraphs [75] - [76] and [77] – [78]
respectively below.
[27] Because I prefer X’s evidence over Mr Fay’s evidence, I am satisfied that Mr Neuss
and Mr Fay did laugh at X after the two rags covered with petroleum jelly were thrown at X
on 11 February 2016. I am also satisfied, on the balance of probabilities, that Mr Fay and/or
Mr Neuss were involved in the rags being covered in petroleum jelly and thrown at X. There
is no suggestion that Mr Kedwell was involved in this conduct.
[28] There is also no suggestion that Mr Kedwell was involved in any of the earlier
unreasonable conduct towards X, as set out in paragraph [18] above. However, X gave
evidence, which I accept, to the effect that:
(a) Every incident that happened to X in the workplace was “a big joke to certain people”,
including Mr Kedwell;24
(b) When he was interviewed by Ms Nutt and Mr Jackson on 1 March 2016, X and Mr
Jackson (SJ) said words to the following effect:
“X He [Mr Neuss] said, that traffic thing we played, if it goes any further
don’t say anything.”
SJ Has he [Mr Neuss] said anything like that with the painting in your boots,
or any other issue?
X They just say its only a joke, we are only joking with you.
SJ Who are they?
X Scott [Kedwell] and Brendan [Neuss].
SJ You didn’t say Zac [Fay]?
X Na he isn’t usually in it. He just might have followed suit.”
24 PN1219
[2016] FWC 6018
7
[29] X was asked about this discussion with Mr Jackson by counsel for Mr Kedwell during
cross examination:25
“…do you think that – where you say there “Scott and Brendan” you were referring to
Zac and Brendan?---Brendan.”
[30] In this answer X confirmed that he intended to refer to Mr Brendan Neuss, but X did
not say whether he was intending to refer to Mr Scott Kedwell or Mr Zac Fay, nor was X
asked any further questions about the matter. In those circumstances, I do not accept the
submission put on behalf of Mr Kedwell that X accepted in cross examination that he
intended to refer to Mr Brendan Neuss and Mr Zac Fay, rather than Mr Brendan Neuss and
Mr Scott Kedwell, when he said “they say its only a joke”.
[31] By reason of the evidence referred to in the previous three paragraphs, I am satisfied
that:
(a) Mr Kedwell was not involved in any of the pre-11 February 2016 unreasonable
conduct towards X, as set out in paragraph [18] above;
(b) Mr Kedwell was not involved in the rag throwing incident on 11 February 2016; and
(c) Mr Kedwell was one of the employees who thought the unreasonable conduct to
which X was subjected in the workplace was a joke.
[32] At the conclusion of his shift on 11 February 2016, X had a shower in the bathhouse
and was one of the last employees on the shift to walk out of the bathhouse towards his car.
As X came out of the bathhouse he saw Mr Neuss, Mr Fay and Mr Kedwell standing together
talking to one another. Mr Kedwell and Mr Fay agree that they were standing together talking
to Mr Neuss when X walked out of the bathhouse.
[33] X gave evidence, which I accept, that Mr Kedwell, Mr Fay and Mr Neuss stopped
talking as X walked past them and they headed off to their own cars as X walked to his car.
X’s oral evidence in this regard is consistent with the handwritten statement made by him on
19 February 2016.26
[34] Mr Fay gave evidence that he talked to Mr Neuss and Mr Kedwell for about 10
minutes outside the bathhouse before they went to their own cars on 11 February 2016.27 Mr
Kedwell says the discussion lasted for “a minute maybe”.28 I prefer Mr Fay’s evidence over
that given by Mr Kedwell in relation to this issue, for two reasons.
[35] First, when Mr Fay was interviewed by Mr Jackson on 25 February 2016 he said the
following in relation to his conversation with Mr Neuss and Mr Kedwell outside the
bathhouse:29
25 PN1216
26 Ex R6, tab 1
27 PN734-748
28 PN397-8
29 Ex R6 at [32]
[2016] FWC 6018
8
“We had a conversation with Scott [Kedwell] and Brendan [Neuss]. We don’t see Scott
much as he is in the top office [Field Maintenance Workshop upstairs offices]. We
were discussing the lack of shower pressure, and trying to get him [Mr Kedwell] to
come to the pub.”
[36] In cross examination Mr Fay said the three of them spoke about going to the pub and
had other “general conversation” outside the bathhouse.30 In particular, Mr Fay explained that
he and Mr Neuss had arranged to meet at the pub after work and they asked Mr Kedwell
during the discussion outside the bathhouse whether he wanted to join them at the pub. Mr
Kedwell told the other two that he was unable to attend the pub because he wanted to get
home to have dinner with his family. I am satisfied that it is more likely than not that such a
discussion (about going to the pub and other “general conversation”) between Mr Kedwell,
Mr Neuss and Mr Fay took longer than one minute.
[37] Secondly, from my observation of Mr Kedwell in the witness box it seemed to me that
Mr Kedwell was keen in his evidence to downplay the length of his conversation with Mr
Neuss and Mr Fay outside the bathhouse. He described the conversation as lasting for “a
minute maybe”.31 Mr Kedwell had good reason to want to downplay this conversation, for it
is during this conversation that Mt Thorley contends Mr Kedwell agreed to act in concert with
Mr Neuss and Mr Fay to attempt to block X from turning right off the Golden Highway into
the Mitchell Line of Road on his way home.
[38] After seeing Mr Neuss, Mr Fay and Mr Kedwell talking together outside the
bathhouse, X got into his car and commenced driving out of the car park. Mr Neuss pulled out
of the car park in front of X. As X drove his car out of work he passed Mr Fay, who was
pulled over on the side of the road talking on his mobile phone. As X passed Mr Fay’s car, Mr
Fay terminated his call on his mobile phone and pulled in behind X. Mr Kedwell drove in his
car directly behind Mr Fay.
[39] Each of Mr Neuss, X, Mr Fay and Mr Kedwell turned right onto the Golden Highway.
Before doing so, they had to stop at a stop sign. They also had to stop at an earlier stop sign to
exit the mine.
[40] The speed limit on the Golden Highway is 100km/hour.
[41] X gave evidence to the following effect, which I accept, in relation to what happened
as he drove along the Golden Highway on his way home from work on 11 February 2016:
(a) As X approached the overtaking lanes at the Broke Road intersection on the Golden
Highway, he merged into the right lane and as he did so Mr Neuss, who was still
driving in front of X, also merged into the right lane and slowed down. X saw the
brake lights on Mr Neuss’ car come on.32 This caused X to brake.
(b) X then moved back across into the left lane and sped up in an attempt to pass Mr
Neuss. However, as X sped up so did Mr Neuss, Mr Fay and Mr Kedwell, with the
30 PN742
31 PN398
32 PN907-8
[2016] FWC 6018
9
result that X was travelling in the left lane at about the same speed and beside Mr
Neuss in the right lane, who was closely followed by Mr Fay and then Mr Kedwell.
(c) X then slowed down to about 50 or 60km/hour and put his right hand blinker on in an
attempt to get back into the right hand lane, which is where X needed to be in order to
turn right into the Mitchell Line of Road on his way home. As X slowed down, so did
Mr Neuss, Mr Fay and Mr Kedwell. X was unable to get back into the right lane.
(d) In the result, X was “boxed” into the left lane and could not get into the right lane to
turn right off the Golden Highway to the Mitchell Line of Road. X had no choice but
to go straight through the Mitchell Line of Road intersection. Further down the road X
did a U-turn and travelled back to the Mitchell Line of Road, where he turned left
towards his home.
[42] Mr Kedwell was aware on 11 February 2016 that, in order for X to drive from work to
his home, X usually turned right off the Golden Highway to the Mitchell Line of Road.
[43] At various stages throughout the investigation into the incident on 11 February 2016 X
asserted that Mr Kedwell looked across at him as they were driving next to each other on the
Golden Highway and laughed, smiled or grinned at him. X also claims that Mr Neuss and Mr
Fay laughed at him when he was driving next to each of them on the Golden Highway.
[44] During cross examination, X gave evidence that he saw Mr Kedwell’s facial
expression, namely a laugh, smile or grin, just as the right hand turning lane to turn right from
the Golden Highway to the Mitchell Line of Road opens up.33
[45] Mr Kedwell gave evidence that he could not recall making eye contact with X when
they were driving next to each other on the Golden Highway.34 Mr Kedwell denies laughing,
smiling or grinning at X on the Golden Highway.35 Mr Fay also denies smiling or laughing at
X on the Golden Highway.
[46] Mr Kedwell submits that the diagram prepared by X36 demonstrates that Mr Kedwell
could not have smiled, laughed or grinned at X at the time alleged by X. In particular, Mr
Kedwell submits that X’s diagram shows that X had passed Mr Kedwell’s car at the point
where the right hand turning lane (into the Mitchell Line of Road) opens up, with the result
that Mr Kedwell could not have laughed, smiled or grinned at him at the time alleged by X.
[47] In support of this submission Mr Kedwell relies on the following evidence given by X
in cross examination:37
“Can the witness be shown – [X], is this a diagram that you drew for Mr Jackson? Is
this a diagram that you drew?---Yes, sorry. Yes – yes.
And you see there you’ve marked the cars?---Yes
33 PN1187-1192
34 PN198-9
35 PN201-2
36 Ex A4
37 PN1200-1206
[2016] FWC 6018
10
And your car is in the left-hand lane ahead of the intersection?---Yes
And you can see Mr Kedwell’s car there?---Yes
And you are in front of Mr Kedwell?---Yes
So on that diagram you wouldn’t have been able to see Mr Kedwell’s face as he was
turning into the right-hand lane?---On this diagram?
Yes?---No.”
[48] The first difficulty with this submission is that counsel for Mr Kedwell did not put to
X that he must, by reason of what is shown on the diagram, be wrong or mistaken about
whether Mr Kedwell laughed, grinned or smiled at him, or where that event happened.
[49] Secondly, the diagram prepared by X is a rough handwritten diagram. It is obviously
not to scale. It shows a snapshot in time. Mr Kedwell was slowing down as he turned into the
right hand turning lane and then turned right into the Mitchell Lane of Road. As Mr Kedwell
was doing this, X was continuing to drive straight ahead because he was unable to get into the
right lane to turn right. In those circumstances, it is quite possible that if X had drawn the
diagram showing the position of the vehicles at a point in time a matter of seconds earlier than
the point in time shown on the diagram, X’s car may well have been positioned next to Mr
Kedwell’s car at a point on the Golden Highway where the right hand turning lane (into the
Mitchell Line of Road) opens up.
[50] Thirdly, the diagram prepared by Mr Kedwell38 shows X’s car next to Mr Kedwell’s
car on the Golden Highway at the point on the Golden Highway where the right hand turning
lane (into the Mitchell Line of Road) opens up. That is consistent with X’s evidence that Mr
Kedwell laughed, smiled or grinned at him at that point in time.
[51] That X has variously described Mr Kedwell as laughing, smiling or grinning at him is,
in my view, of little moment. In circumstances where one person is driving next to another
person in separate cars, it would be difficult for the first person to be definite about whether
the facial expression on the second person’s face was a laugh, smile or a grin.
[52] I am satisfied, on the balance of probabilities and having regard to the Briginshaw
standard, that Mr Kedwell made eye contact with X when they were driving next to each other
on the Golden Highway where the right hand turning lane (into the Mitchell Line of Road)
opens up and Mr Kedwell smiled, laughed or grinned at him, for the following reasons:
(a) X is adamant that he made eye contact with Mr Kedwell when they were driving next
to each other on the Golden Highway and Mr Kedwell smiled, laughed or grinned at
him. X was not shaken from his evidence in that regard in cross examination;
(b) X’s evidence as to the location of the smiling, laughing or grinning incident is
consistent with the diagram drawn by Mr Kedwell;39 and
38 Ex 1, annexure SK-10
39 Ex 1, annexure SK-10
[2016] FWC 6018
11
(c) For the reasons set out in paragraphs [26] and [75] – [76], I prefer X’s evidence over
Mr Kedwell’s evidence.
[53] X also gave evidence, which I accept, to the effect that, as a result of the slowing down
and speeding up by Mr Neuss and X, there was a line of traffic behind them on the Golden
Highway and X heard some of the cars behind them beeping their horns. X’s evidence as to
the traffic slowing down and banking up on the Golden Highway is consistent with the
following unchallenged evidence given by witnesses on behalf of Mt Thorley in their witness
statements:
(a) Mr Ian Mullard, a former Maintenance Electrician at Mt Thorley, stated:
“6. On Thursday 11 February 2016, I had a shower and left work at
approximately 6:30pm.
7. After I passed the Broke Road turn off, the traffic slowed from 100 km an
hour to about 20 km an hour.
8. I looked ahead and could see approximately nine cars backed up in front of
me. I pulled over to the right a little bit towards the double white lines to
see what the obstruction was up ahead and saw that there was a flat top ute
at the head of the line of traffic with a crib bag tied to the tray. I recognised
the car to be Brendan Neuss’ car. I also saw Zach Fay’s vehicle
immediately behind Mr Neuss’ vehicle. Mr Fay drives a Mazda 3.
9. I remember thinking at the time that Mr Neuss must have had gearbox
problems that caused him to struggle going up the hill.
10. I continued up the hill and moved into the right hand turning lane to turn
onto the Mitchell Line of Road. I saw Mr Neuss and Mr Fay drive straight
ahead towards Singleton.
16 February 2016.
11. I was not rostered to work again until Tuesday, 16 February 2016.
12. On that day, I went to the crib room before the 6:30am “muster” and saw
Mr Neuss. I approached him and had a conversation with him about what I
had observed on the highway on the way home on 11 February 2016. We
had a conversation in words to the following effect:
IM. What happened to your car last Thursday? Did you have gearbox
problems?
BN: Nah, we were just playing with … [X] to stop him from turning
right.
13. When Mr Neuss responded to me he had a grin on his face. Mr Neuss
then walked away from me.”
[2016] FWC 6018
12
(b) Mr Steven Flannery, Regional Asset Manager, stated:
“8. On 11 February 2016, I left the MTW site at approximately 5:00pm and
drove along the Golden Highway towards my home in Singleton.
9. As I headed towards Singleton I passed the turnoff for Broke Road. The
Golden Highway is a single lane in each direction until the turnoff for
Broke Road, where a turning lane from Broke Road onto the Golden
Highway creates a new lane that heads up the hill.
10. When I passed the turnoff, I remained in the left-hand lane. I noticed that
the lanes along the Golden Highway heading up the hill ahead of me had
a large amount of traffic backed up from the bottom of the hill to the top
of the hill.
11. I reduced my speed from approximately 100 km an hour to around 30 to
40 km an hour as I joined the traffic proceeding up the hill. At the time, I
thought there might have been a wide load at the top of the hill or some
other obstruction as there were approximately 20 vehicles between me
and the top of the hill that appeared impacted by something on the road
up ahead.
12. I drive along the Golden Highway on a regular basis and do not recall
having previously seen traffic stretched back down the hill with drivers
braking and pulling up, rather than increasing speed to make it up the
hill.
13. When I reached the top of the hill, near the Mitchell Line of Road turnoff
to the right, I was still in the left-hand lane however as I crested the hill I
noticed a bunching of vehicles on the RH turning lane with
approximately three vehicles in the middle lane and that ended up driving
past the turnoff at low speed.
14. The vehicle directly in front of me, a white dual cab utility then pulled
across to the left-hand side of the road into the gravel.
15. As I passed the vehicle, I looked at the driver. I did not recognise him but
I noticed that he appeared to be a relatively young man and was looking
back across his right shoulder in the direction of the intersection he’d just
passed.
16. Once I passed the vehicle, I looked in my rear vision mirror. I then saw
the vehicle do a U-turn across the highway and drive back towards the
turnoff to the Mitchell Line of Road. I recall thinking that the man
driving the vehicle must have missed the turnoff.”
(c) Mr Stuart Bower, Field Crew – Dayshift Supervisor, stated:
[2016] FWC 6018
13
“13. On 11 February 2016, I left the MTW site and drove along the Golden
Highway towards Singleton. As I passed the Broke Road turnoff, I saw a
queue of traffic leading up the hill. It was unusual for traffic to be banked
up leading up the hill.
14. At the front of the queue of cars, I saw Mr Neuss’s car. I identified it as
Mr Neuss’ car as I know that he drives a golden brown coloured Nissan
Patrol.
…
18. At around 2:30pm that afternoon [17 February 2016], I got a call from
Mr Neuss to get a lift up to the workshop as his partner was in labour,
due to deliver a baby. During the trip we had a conversation in words to
the following effect:
SB: Brendan, what happened on Thursday? There was a whole queue of
traffic behind you. Were you towing someone behind you?
BN: Nah, I missed a gear so I just chugged up the hill. I couldn’t be
bothered changing lanes. I’m surprised you didn’t see the smoke.”
[54] Although Mr Flannery said in his statement that he left the Mt Thorley site at
approximately 5pm on 11 February 2016 and drove along the Golden Highway towards his
home in Singleton, where he observed the matters referred to in his statement, I am satisfied
that Mr Flannery simply made a mistake about the time at which he left the site and drove
home. All the other witnesses said the event took place after finishing the shift at 6:30pm and
leaving the workplace. Mr Flannery told Mt Thorley’s Human Resources Advisor, Ms
Stefanie Nutt, that he had seen the event on the road on 11 February 2016, on his way home
from Mt Thorley.40 The events described by Mr Flannery bear a close resemblance to those
put forward by a range of other witnesses. I am satisfied that Mr Flannery is describing, in
paragraphs [8] to [16] of his witness statement, the same incident on 11 February 2016 as X
and the other witnesses.
[55] There is some variation between the evidence given by X, Mr Mullard and Mr
Flannery as to the speed to which the traffic slowed down on the Golden Highway on 11
February 2016. X said the traffic slowed to about 50km/hour41 or 60km/hour.42 Mr Flannery
said 30km/hour to 40km/hour. Mr Mullard said 20km/hour. In considering these differences,
it is necessary to have regard to the fact that X, Mr Mullard and Mr Flannery were travelling
in different parts of the line of traffic on the day in question. It is likely that a slowing down to
about 50km/hour or 60km/hour in a 100km/hour traffic zone at the head of the line of traffic
could cause a decrease in speed to 20, 30 or 40km/hour at other points further down the line
of traffic, particularly where, as was the case here, the traffic was heading up a hill. What is
consistent between the evidence given by each of X, Mr Mullard, Mr Flannery and Mr Bower
is that the traffic slowed down considerably and unusually at the time of the incident. Mr
Neuss’ statement to Mr Bower that he “missed a gear so I just chugged up the hill” is also
40 Ex R6 at [28]
41 Ex R2 at [14]
42 Evidence given by X in these proceedings.
[2016] FWC 6018
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consistent with the traffic having slowed down considerably and unusually, as is the statement
by Mr Fay that he “got held up in traffic”, albeit Mr Fay maintains that he was still doing
about 80km/hour in the “held up” traffic.43
[56] Mr Kedwell denies that he slowed down to anywhere between 20km/hour and
60km/hour on the Golden Highway, other than when he was getting into the right turning lane
in order to turn right into the Mitchell Line of Road. Mr Kedwell maintains that he travelled at
about 80km/hour on the Golden Highway at all times44 until he moved into the right turning
lane in order to turn right into the Mitchell Line of Road. I do not accept Mr Kedwell’s
evidence in this regard. Although his evidence is consistent with the version of events put
forward by Mr Fay and (at times) Mr Neuss, it is inconsistent with the evidence given by X,
Mr Mullard, Mr Flannery and Mr Bower, and Mr Neuss in his statement to Mr Bower. I find
that Mr Kedwell did slow down to about 60km/hour on the Golden Highway as a result of the
“game” of “cat and mouse” being played by Mr Neuss in relation to X.
[57] X also gave evidence, which I accept, that Mr Neuss said the following things to him
when they returned to work on 16 February 2016:45
“… that incident on the road the other Thursday… if that goes any further, nothing
happened… That traffic thing we played, if it goes any further don’t say anything.”
[58] During the investigation Mr Neuss denied that he was “chugging up the hill” on 11
February 2016 and maintained that he was driving at 100km/hour on the Golden Highway.46
Mr Neuss also denied the allegation that he deliberately blocked X from turning right off the
Golden Highway onto the Mitchell Line of Road on 11 February 2016. His denials were not
accepted by Mt Thorley and he was dismissed. Mr Fay also denied the allegations. His denials
were not accepted either. He was issued with a final written warning.
[59] The incident on the Golden Highway on 11 February 2016 understandably upset X. He
described it in the following way in his conversation with Mr Still and Mr Bower at X’s home
on the evening of 18 February 2016:47
“… I thought it was a pretty dangerous situation.
I was pretty upset when I got home and started an argument with my brother when I
got home. I think I took it all out on him even though he hadn’t done anything wrong.”
[60] On 22 February 2016, Mr Kedwell was stood down on full pay, pending an
investigation into the incident on 11 February 2016. Mr Kedwell was told by Mr Still that he
was required to keep the matter confidential and “not speak about the investigation to
anyone”.48 Mr Kedwell was also told that he would need to be available to meet with Mt
Thorley’s investigators in relation to the incident.
43 Ex R6 at [32]
44 Ex R6 at [35]; PN218 & PN240
45 Ex R6, tab 14 at p13
46 Ex R6 at [30]
47 Ex R2 at [14]
48 Ex R2 at [25]; PN262
[2016] FWC 6018
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[61] At the time that Mr Kedwell was stood down on 22 February 2016, he knew that Mr
Neuss and Mr Fay were involved in the incident. In fact, Mr Kedwell had been asked by Mr
Mick Robbins, CFMEU Lodge Vice-President, on 17 or 18 February 2016 whether he had
deliberately cut-off X last week.49 On that evening Mr Kedwell prepared a diagram showing
the position of his car, X’s car, Mr Neuss’ car, Mr Fay’s car and Mr Robinson’s car close to
the Mitchell Line of Road intersection on the Golden Highway on 11 February 2016.50
[62] After being suspended on 22 February 2016, Mr Kedwell drove his car out of the car
park and once he was off the site he pulled over to the side of the road and made a telephone
call to his wife. Mr Kedwell told his wife that he had been stood down and would therefore be
able to make it to his three-year-old daughter’s swimming lessons in Singleton.
[63] As Mr Kedwell was on the telephone to his wife, Mr Fay pulled up alongside him. Mr
Kedwell said to Mr Fay words to the effect: “Looks like you’ve been stood down too?” Mr
Fay responded in the affirmative. Mr Kedwell then told Mr Fay that he was going to go to his
daughter’s swimming lesson and then go and see Mr Neuss to congratulate him on his baby.
Mr Neuss had only days prior become a father for the first time.
[64] Mr Kedwell attended his daughter’s swimming lesson. He then drove to Mr Neuss’
house in Singleton. Mr Kedwell contends that he did not contact Mr Neuss to make any
arrangements about going to see him on 22 February 2016; Mr Kedwell just turned up at Mr
Neuss’ house.
[65] When Mr Kedwell arrived at Mr Neuss’ house, he says Mr Neuss said to him words to
the effect: “Have you been stood down as well?”, to which Mr Kedwell responded in the
affirmative.
[66] Mr Neuss’ wife was not at home when Mr Kedwell arrived on 22 February 2016; she
was still in hospital with their new born baby.
[67] About 5 to 10 minutes after Mr Kedwell arrived unannounced at Mr Neuss’ house, Mr
Fay also arrived. Mr Fay says that the purpose of his visit was to congratulate Mr Neuss on
the birth of his son.
[68] Mr Kedwell says that he, Mr Neuss and Mr Fay spoke together at Mr Neuss’ house for
about 50 minutes on 22 February 2016. Mr Fay says that he remained at Mr Neuss’ house for
about 30 minutes.51
[69] In cross examination Mr Kedwell gave the following evidence in relation to his
discussion with Mr Neuss and Mr Fay at Mr Neuss’ house on 22 February 2016:
(a) Apart from Mr Neuss asking Mr Kedwell whether he had been stood down as well, Mr
Kedwell denied having any discussion about the incident on 11 February 2016;52 and
49 Ex A1 at [26]
50 Ex A1 at [29]
51 Ex A3 at [24]
52 PN320
[2016] FWC 6018
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(b) Mr Kedwell said they spoke about Mr Neuss’ baby but he could not recall anything
else they spoke about during the discussion which went for about 50 minutes.53
[70] Mr Fay accepted in cross examination that during his discussion with Mr Neuss and
Mr Kedwell at Mr Neuss’ house on 22 February 2016:
(a) They discussed why they had been stood down. In particular, Mr Fay says that Mr
Neuss and Mr Kedwell told him they were stood down for an incident that happened
on the 11th of February;54
(b) They discussed the 11 February 2016 incident.55 In particular, Mr Fay says that Mr
Neuss and Mr Kedwell told him the incident related to what happened when they were
driving home on the 11th of February;56 and
(c) Mr Fay used his mobile telephone, in the presence of Mr Neuss and Mr Kedwell, to
call the CFMEU to try and find out whether he had been stood down for the same
reason as Mr Neuss and Mr Kedwell.57
[71] I do not accept Mr Kedwell’s evidence that he, Mr Neuss and Mr Fay did not discuss
the 11 February 2016 incident at Mr Neuss’s house on 22 February 2016, apart from Mr
Neuss asking Mr Kedwell whether he had been stood down as well. Mr Kedwell’s evidence in
that regard is inconsistent with the evidence given by Mr Fay, as set out the previous
paragraph. Further, Mr Kedwell’s assertion that he, Mr Fay and Mr Neuss talked about Mr
Neuss’ new baby for about 50 minutes and he could not recall anything else they spoke about
does not have a ring of truth about it, particularly in circumstances where Mr Kedwell, Mr
Neuss and Mr Fay met on the very day (22 February 2016) on which they had each been
stood down in relation to the same incident, an incident which they knew was being treated
seriously by Mt Thorley, and they had been told to keep the matter confidential and not to
speak about the investigation to anyone.
[72] Mt Thorley contends that at this meeting on 22 February 2016 Mr Kedwell, Mr Neuss
and Mr Fay got together to get their “story” straight about the incident on 11 February 2016.
In particular, Mt Thorley contends that Mr Kedwell, Mr Neuss and Mr Fay agreed to tell their
employer that they were travelling at about, or at least, 80 km/hour on the Golden Highway
on the day in question.
[73] During Mt Thorley’s investigation into the matter:
(a) Mr Kedwell said that he was travelling at about 80km/hour at all times on the Golden
Highway;58
(b) Mr Fay said that he was travelling at about 80km/hour on the Golden Highway;59 and
53 PN343-349
54 PN585
55 PN587-601
56 PN626-636
57 PN627-630
58 Ex R6 at [35]
59 Ex R6 at [32]
[2016] FWC 6018
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(c) Mr Neuss said that he was travelling at about 100km/hour at all times on the Golden
Highway.60
[74] Having regard to the facts, matters and circumstances set out in paragraphs [18] to
[73] above, I find, on the balance of probabilities, that Mr Kedwell, Mr Fay and Mr Neuss:
(a) did discuss the 11 February 2016 road incident when they met at Mr Neuss’ house on
22 February 2016;
(b) agreed in the meeting at Mr Neuss’ house on 22 February 2016 to tell Mt Thorley that
they did not slow down and maintained a speed of at least 80km/hour at all relevant
times on the Golden Highway on 11 February 2016; and
(c) each slowed down to about 50 or 60km/hour on the Golden Highway on 11 February
2016.
Mr Kedwell’s credit
[75] At all times prior to his cross examination, Mr Kedwell denied that he engaged in the
bullying behaviour alleged against him in 2014.61 In fact, Mr Kedwell felt so strongly about
the matter that he initiated a dispute under the dispute settlement procedure in the enterprise
agreement and also made a formal complaint to the NSW Department of Industry and
Investment. However, during his cross examination Mr Kedwell conceded, in light of the
conclusion reached by the Department of Industry and Investment in their investigation, that
he did engage in the bullying behaviour alleged against him in 2014.62 His change of position
in relation to these matters impacts adversely on his credit.
[76] I am also of the view that Mr Kedwell’s credibility was diminished by reason of the
following matters:
(a) Mr Kedwell’s denial that he, Mr Neuss and Mr Fay discussed the 11 February 2016
incident at Mr Neuss’s house on 22 February 2016, apart from Mr Neuss asking Mr
Kedwell whether he had been stood down as well. I have found that Mr Kedwell did
engage in such a discussion, for the reasons set out in paragraph [71] above;
(b) Mr Kedwell’s evidence that he travelled at about 80km/hour and did not slow down on
the Golden Highway until he moved into the right turning lane in order to turn right
into the Mitchell Line of Road. I have rejected Mr Kedwell’s evidence in this regard
for the reasons set out in paragraph [56] above; and
(c) Mr Kedwell, to my observation, was keen to downplay the length of his conversation
with Mr Neuss and Mr Fay outside the bathhouse on 11 February 2016. I have rejected
Mr Kedwell’s evidence that this conversation lasted for about a minute for the reasons
set out in paragraphs [35] to [37] above.
60 Ex R6 at [30]
61 Ex A1 at [158]-[161]
62 PN442-452
[2016] FWC 6018
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Mr Fay’s credit
[77] Mr Fay was evasive in a number of the answers he gave to questions put to him in
cross examination. For example, he readily accepted at the commencement of his cross
examination that Mr Still told him at the meeting on 22 February 2016 that the allegations
related to an incident on 11 February 2016.63 When it was pointed out to Mr Fay that his
evidence in this regard was inconsistent with his witness statement, he sought to change his
evidence by first saying that he could not recall Mr Still telling him on 22 February 2016 that
the investigation was in relation to an incident on 11 February 2016 and then saying that he
received a phone call later on 22 February 2016 or at some other time from Mr Jackson and
Mr Jackson told him that the investigation related to an incident on 11 February 2016.64
Finally, Mr Fay did not deny the proposition that Mr Still told him on 22 February 2016 that
the company had received allegations about an incident that happened on 11 February 2016.65
[78] Mr Fay’s evidence about the extent to which the incident on the Golden Highway on
11 February 2016 was discussed at the meeting at Mr Neuss’ house on 22 February 2016 does
not have a ring of truth to it. Mr Fay says he was not sure at the time of that meeting why he
had been stood down just a few hours earlier that day. In those circumstances, it beggars
belief that in their meeting at Mr Neuss’ house on 22 February 2016 Mr Fay, Mr Kedwell and
Mr Neuss did not discuss, in some detail, both why they had been stood down and what
happened in relation to X on the Golden Highway on 11 February 2016.
Did Mr Kedwell intentionally prevent X from being able to turn right from the Golden
Highway onto the Mitchell Line of Road?
[79] Some of the relevant primary and intermediate facts in this case support Mt Thorley’s
case that Mr Kedwell acted intentionally, together with Mr Neuss and Mr Fay, to prevent X
from being able to turn right off the Golden Highway, while other relevant primary and
intermediate facts support Mr Kedwell’s contention that, apart from there being more traffic
than normal66 on the Golden Highway on 11 February 2016, his drive home was “normal”67
and he did not act intentionally to prevent X from being able to turn right off the Golden
Highway. I will address each class of facts below, before standing back and viewing the
matter from a distance in order to make a finding in relation to Mr Kedwell’s conduct on 11
February 2016.
Main facts supporting Mr Kedwell’s innocence
[80] I consider the following facts to be the main facts in support of Mr Kedwell’s
contention that he did not act deliberately to prevent X from being able to turn right from the
Golden Highway into the Mitchell Line of Road.
[81] First, there is no evidence of any prior animosity between Mr Kedwell and X.
63 PN542
64 PN547-552
65 PN554-7
66 Ex R6 at [35]
67 Ibid
[2016] FWC 6018
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[82] Secondly, Mr Kedwell was not involved in any of the unreasonable acts that took
place in relation to X at the workplace prior to 11 February 2016.
[83] Thirdly, Mr Kedwell was not involved in the incident in which rags covered with
petroleum jelly were thrown at X when he was working on an excavator at about 2:30pm on
11 February 2016.
[84] Fourthly, X did not hear what Mr Kedwell, Mr Neuss and Mr Fay were talking about
as he walked past them outside the bathhouse at the conclusion of day shift on 11 February
2016.
[85] Fifthly, Mr Kedwell had no intention of going to the pub with Mr Neuss and Mr Fay
after work on 11 February 2016.
[86] Sixthly, there was no way that Mr Kedwell, Mr Neuss and/or Mr Fay could have
known whether any or all of them would be delayed at the stop signs through which they had
to pass to travel from the Mt Thorley site to the Golden Highway. As a result, they could not
guarantee that they would be able to maintain their positions driving immediately in front of
and behind X during his journey home.
[87] Seventhly, there was no way that Mr Kedwell, Mr Neuss and/or Mr Fay could have
known for certain that X would move from the right lane to the left lane (and thereby give
them a chance to “box” him in) on the Golden Highway in the period of time leading up to the
Mitchell Line of Road intersection, particularly in circumstances where they knew that X
ordinarily turned right at that intersection to drive home.
[88] Eighthly, Mr Kedwell may have been smiling, laughing or grinning at something other
than X. For example, Mr Kedwell may have been laughing at something he heard on the radio
in his car.
[89] Ninthly, given the traffic was heavier than normal on the Golden Highway on 11
February 2016, Mr Kedwell may have simply been driving at the same speed as the car in
front of him and may not have been aware of X trying to get into the right lane to turn right
into the Mitchell Line of Road.
[90] Tenthly, if, as is contended for by Mt Thorley, Mr Kedwell, Mr Neuss and Mr Fay met
at Mr Neuss’s house on 22 February 2016 for the purpose of getting their stories “straight”
about what happened on 11 February 2016, they failed in achieving such an objective because
the information given by Mr Neuss to Mt Thorley during the investigation concerning the
speed at which he was travelling on the Golden Highway is materially different from the
information given by Mr Kedwell and Mr Fay on that topic. In particular, Mr Neuss said he
was driving at 100km/hour, whereas Mr Kedwell and Mr Fay said they were driving at about
80km/hour.
Main facts supporting Mt Thorley’s contention as to Mr Kedwell’s conduct
[91] I consider the following facts to be the main facts in support of Mt Thorley’s
contention that Mr Kedwell intentionally drove to prevent X from turning right from the
Golden Highway into the Mitchell Line of Road.
[2016] FWC 6018
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[92] First, Mr Neuss admitted to “playing”68 the “traffic thing”69 or “joke”70 on X to “stop
him from turning right”.71
[93] Secondly, Mr Neuss used the word “we” to describe the “traffic thing”72 or “joke”73
that was “played”74 on X to “stop him from turning right”.75 Mr Neuss used that word (“we”)
in his discussion with X on 16 February 201676 and his discussion with Mr Mullard on the
same day.77 The word “we” implies that more than one person was involved.
[94] Thirdly, as a matter of common sense I am satisfied that it would be more difficult,
albeit not impossible, for one person in one vehicle to achieve an objective of “boxing”
another motorist into a position where they could not turn where they wished to turn than it
would if several vehicles were involved. It follows that it was likely that Mr Neuss sought the
assistance of other employees to play the “joke” on X to prevent him from turning right on 11
February 2016.
[95] Fourthly, Mr Kedwell was one of the employees who thought the unreasonable
conduct to which X was subjected in the workplace was a joke.
[96] Fifthly, for the reasons set out above, I am satisfied that Mr Neuss and/or Mr Fay were
involved in the rags being covered in petroleum jelly and thrown at X at about 2:30pm on 11
February 2016.
[97] Sixthly, Mr Kedwell spoke to Mr Neuss and Mr Fay for about 10 minutes outside the
bathhouse until X came out of the bathhouse on 11 February 2016. The three of them stopped
talking when X walked past them, after which they immediately went to their cars. Mr Neuss
pulled out in front of X as he drove out of the car park. Mr Fay was stationary on the side of
the road and pulled out behind X as he drove past. Mr Kedwell drove directly behind Mr Fay.
[98] Seventhly, and importantly, I am satisfied for the reasons set out above that Mr
Kedwell made eye contact with X and laughed, smiled or grinned at X at a point on the
Golden Highway where the right hand turning lane (into the Mitchell Line of Road) opens up.
This finding links Mr Kedwell to the plan to “box” X in and prevent him from turning right.
[99] Eighthly, for the reasons set out above, I am satisfied that Mr Kedwell met with Mr
Neuss and Mr Fay on 22 February 2016 and discussed the 11 February 2016 incident on the
very day they had been suspended from duty in relation to the incident and directed not to
discuss the matter with anybody. I am also satisfied that they got their “stories” straight on
that day, insofar as they agreed to inform Mt Thorley that they did not slow down and drove
at least 80km/hour at all relevant times on the Golden Highway.
68 Ex R6, tab 14, p13 & Ex R4 at [12]
69 Ex R6, tab 14, p13
70 Ibid
71 Ex R4 at [12]
72 Ex R6, tab 14, p13
73 Ibid
74 Ex R6, tab 14, p13 & Ex R4 at [12]
75 Ex R4 at [12]
76 Ex R6, tab 14, p13
77 Ex R4 at [12]
[2016] FWC 6018
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Conclusion as to Mr Kedwell’s conduct
[100] There is a proper foundation, in my view, from which to conclude that Mr Kedwell
acted intentionally, together with Mr Neuss and Mr Fay, to prevent X from being able to turn
right off the Golden Highway on 11 February 2016. They could not have been assured of
succeeding in their plan to “box” X in and prevent him from turning right. For example, X
may never have moved into the left lane on the Golden Highway, with the result that he could
not have been “boxed” in to that lane, or Mr Neuss, Mr Fay and Mr Kedwell may have
become separated from X as they waited at the stop signs prior to turning on to the Golden
Highway. However, I am satisfied after considering all the relevant primary and secondary
facts that the most probable inference is that Mr Kedwell acted intentionally pursuant to a
plan or agreement made with Mr Fay and Mr Neuss outside the bathhouse on 11 February
2016 to prevent X from turning right onto the Mitchell Line of Road, and they were
successful in achieving their objective. Applying the Briginshaw principle, I do not lightly
make this finding, thereby rejecting Mr Kedwell’s evidence. However, when I stand back and
view the overall effect of the relevant facts I am in a position where I can, and do,
comfortably conclude that Mr Kedwell acted intentionally on 11 February 2016 in the manner
contended for by Mt Thorley.
[101] In reaching my conclusion in relation to Mr Kedwell’s conduct on 11 February 2016 I
have been particularly (but not exclusively) persuaded by the following matters:
(a) Mr Neuss’ admission that “we played” a “joke” on X to “stop him from turning right”;
(b) the facts referred to in paragraphs [96] and [97] above; and
(c) the fact that Mr Kedwell made eye contact with X and smiled, laughed or grinned at
him at a time when X was “boxed” in to the left lane and could not get into the right
lane to turn right into the Mitchell Line of Road.
Out of hours conduct
[102] It is only in exceptional circumstances that an employer has a right to extend any
supervision over the private activities of employees.78
[103] The out of hours conduct must have a relevant connection to the employment
relationship in order to be a valid reason for dismissal.79 In ascertaining whether a relevant
connection is established, the following matters should be considered:80
(a) Whether the conduct, viewed objectively, is likely to cause serious damage to the
relationship between the employee and employer;
(b) Whether the conduct damages the employer’s interests; or
(c) Whether the conduct is incompatible with the employee’s duty as an employee.
78 Appellant v Respondent (1999) 89 IR 407 at 416
79 Rose v Telstra Corporation Ltd (AIRC, Ross VP, 4 December 1998) Print Q9292, 11
80 Ibid
[2016] FWC 6018
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[104] There is no question that Mr Kedwell’s conduct in making a plan or agreement with
Mr Neuss and Mr Fay outside the bathhouse on 11 February 2016 to attempt to prevent X
from turning right off the Golden Highway onto the Mitchell Line of Road was conduct that
took place at the workplace and is therefore not “out of hours conduct”. Further, I am satisfied
that the conduct in which I have found that Mr Kedwell engaged on the Golden Highway in
relation to X on 11 February 2016 has a relevant connection to the employment relationship
for the following reasons:
(a) First, the plan or agreement to engage in the conduct on the Golden Highway was
made between Mr Kedwell, Mr Neuss and Mr Fay at the workplace (outside the
bathhouse) after the conclusion of day shift on 11 February 2016;
(b) Secondly, the harassment of X on the Golden Highway was continuation of the
unreasonable conduct to which X had been subjected earlier on 11 February 2016. In
particular, rags covered with petroleum jelly were thrown at X at about 2:30pm on that
day. Although Mr Kedwell was not involved in that incident, Mr Fay and Mr Neuss
were. They were also involved, together with Mr Kedwell, in the “boxing” in of X on
the Golden Highway;
(c) Thirdly, the conduct on the Golden Highway took place on the way home from work.
If any injury had occurred on the Golden Highway it would have amounted to a
“journey claim” under the Workers Compensation Act 1987 (NSW) (section 10), for
which Mt Thorley would have been liable. Accordingly, there was a risk of damage to
Mt Thorley’s interests;
(d) Fourthly, the conduct on the Golden Highway had an impact on the relationship
between X and each of Mr Kedwell, Mr Fay and Mr Neuss, all of whom worked in the
same department, albeit that in the last 12 months Mr Kedwell had been undertaking a
different role and was not working in close proximity to X, Mr Fay and Mr Neuss; and
(e) Fifthly, Mt Thorley had a legitimate concern to act on the incident and to ensure that
no similar incidents take place in the future, particularly where the incident occurred
on a public road in reasonably close proximity to the mine and there was a real risk of
the employees involved and other members of the public being seriously injured. It
follows that the incident had the potential to adversely affect Mt Thorley’s reputation.
Scope of Mt Thorley’s policies
[105] Clause 2 of Rio Tinto’s Code of Conduct governs the scope of the Code:
“This policy applies to all employees, contractors, suppliers and consultants of RTCA
when on (or purporting to be on) RTCA Business, RTCA property or attending
functions, social and otherwise, organised by or in connection with RTCA.
References to RTCA or ‘the Company’ are references to RTCA and all of its
subsidiaries or any entities that RTCA owns, operates or manages.”
[106] There is no question that Mt Thorley falls within the definition of RTCA.
[2016] FWC 6018
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[107] Rio Tinto’s Anti-Discrimination, Sexual Harassment and Bullying Policy applies to
the conduct of workers, including employees:81
in the workplace (even outside normal working hours);
during work activities (for example when dealing with other employees or suppliers
and external parties or during work related travel or training activities);
at work-related events (for example at social functions); and
can extend to the private use of social media if there is a sufficient connection to the
workplace or other people at work.
[108] When an employee of Mt Thorley is driving home from work in their own time they
are not on Mt Thorley business, on Mt Thorley property, in the workplace, undertaking work
activities, at a work-related function or event, nor are they using social media. Accordingly, I
find that Mr Kedwell’s conduct in intentionally preventing X from turning right off the
Golden Highway did not fall within the scope of, and therefore did not contravene, the Code
of Conduct or the Anti-Discrimination, Sexual Harassment and Bullying Policy. However, the
agreement or plan made by Mr Kedwell, Mr Neuss and Mr Fay to try to “block” X from being
able to turn right from the Golden Highway into the Mitchell Line of Road was conduct that
occurred on Mt Thorley’s property (outside the bathhouse) and is therefore within the scope
of both the Code of Conduct and the Anti-Discrimination, Sexual Harassment and Bullying
Policy.
[109] Regardless of the fact that Mr Kedwell’s conduct in intentionally preventing X from
turning right off the Golden Highway did not fall within the scope of, and therefore did not
contravene, the Code of Conduct or the Anti-Discrimination, Sexual Harassment and Bullying
Policy, Mt Thorley is still entitled to have regard to that conduct in asserting that it had a valid
reason to terminate Mr Kedwell’s employment. That is because Mr Kedwell’s conduct on the
Golden Highway had a sufficient connection with his employment, for the reasons set out in
paragraph [104] above.
Conclusion on valid reason
[110] Mr Kedwell’s conduct in entering into an agreement or plan outside the bathhouse on
11 February 2016 with Mr Neuss and Mr Fay to try to “block” X from being able to turn right
from the Golden Highway into the Mitchell Line of Road constitutes a clear and patent breach
of:
(a) his obligation under clauses 4.15 and 6.1 of Rio Tinto’s Code of Conduct to not
engage in conduct that would be regarded by a reasonable person as offensive or
unacceptable; and
(b) his obligation under clauses 2.1 and 2.4 of Rio Tinto’s Anti-Discrimination, Sexual
Harassment and Bullying Policy to be accountable for his behaviour and not to bully
another worker. The definition of “bullying” in clause 2.4 is satisfied because Mr
Kedwell was part of a group (comprised of Mr Neuss, Mr Fay and Mr Kedwell) who
81 Clause 1 of Rio Tinto’s Anti-Discrimination, Sexual Harassment and Bullying Policy
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repeatedly behaved unreasonably towards X and their conduct created a risk to the
health and safety of X. It matters not that Mr Kedwell did not himself engage in
repeated behaviour against X, for Mr Kedwell was part of a group that engaged in
such repeated behaviour.
[111] These substantial breaches of policy by Mr Kedwell gave Mt Thorley a sound,
defensible and well founded reason to dismiss Mr Kedwell.
[112] Further, Mr Kedwell’s conduct in intentionally preventing X from turning right off the
Golden Highway was unreasonable conduct, had a sufficient connection with Mr Kedwell’s
employment, and put at risk the safety of X. For those reasons, Mt Thorley had a sound,
defensible and well founded reason to dismiss Mr Kedwell on the basis of his conduct in
intentionally preventing X from turning right off the Golden Highway.
[113] For the reasons set out above, I am satisfied that Mt Thorley had a valid reason for Mr
Kedwell’s dismissal related to his conduct, including its effect on the safety and welfare of
other employees.
Was Mr Kedwell notified of the reasons for his dismissal and given an opportunity to
respond (s.387(b)&(c))?
[114] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made82, and in explicit83 and plain and clear
terms.84 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial
Relations Commission dealing with a similar provision of the Workplace Relations Act 1996
stated the following (at [73]):
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for the termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it
was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment. Much like shutting the stable
door after the horse has bolted.”
[115] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. This criterion
is to be applied in a common sense way to ensure the employee is treated fairly and should
not be burdened with formality.85
[116] On 22 February 2016, Mr Kedwell was told that he was being stood down on full pay
in relation to an incident involving him “when travelling home from work on 11 February”.86
[117] On 25 February 2016, Mr Kedwell was interviewed by Mr Jackson in relation to the
incident on 11 February 2016. Allegations were put to Mr Kedwell by Mr Jackson in a
82 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]
83 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151
84 Previsic v Australian Quarantine Inspection Services Print Q3730
85 RMIT v Asher (2010) 194 IR 1 at 14-15
86 Ex R2 at [25]
[2016] FWC 6018
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meeting on 2 March 2016. Mr Kedwell responded to those allegations. Mr Kedwell was
informed of the outcome of Mr Jackson’s investigation at a meeting on 14 March 2016. At
that meeting Mr Jackson was provided with a letter asking him to show cause why his
employment should not be terminated. The show cause letter set out the findings that had
been made against Mr Kedwell by Mt Thorley. On 16 March 2016, Mr Kedwell met with Mr
Jackson to provide his response to the show cause letter. Mr Kedwell provided a written
response to the show cause letter.
[118] On 17 March 2016, Mr Kedwell attended a meeting at which he was informed that Mt
Thorley had decided to terminate his employment immediately, with a payment in lieu of
notice to be made to him. Mr Kedwell was provided with a letter of termination which
included the reasons for the termination of his employment.
[119] On the basis of the evidence summarised in the previous four paragraphs, I am
satisfied that Mt Thorley notified Mr Kedwell of the reasons for his dismissal and gave him
multiple opportunities to respond to those reasons before making the decision to dismiss him.
Was there an unreasonable refusal to allow Mr Kedwell to have a support person
present (s.387(d))?
[120] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, an employer should not unreasonably
refuse that person being present.
[121] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
employee the opportunity to have a support person present when they are considering
dismissing them.”87
[122] Mr Kedwell had a support person with him during his interview on 25 February 2016,
the meeting at which the allegations were put to him on 2 March 2016, the meeting to inform
Mr Kedwell of the outcome of Mr Jackson’s investigation on 14 March 2016, the meeting at
which Mr Kedwell provided his show cause response on 16 March 2016, and the termination
meeting on 17 March 2016. Accordingly, I am satisfied that there was no unreasonable refusal
by Mt Thorley to allow Mr Kedwell to have a support person present to assist at any
discussions relating to his dismissal.
Warnings about unsatisfactory performance (s.387(e))
[123] Where an employee protected from unfair dismissal is dismissed for the reason of
unsatisfactory performance, the employer should warn the employee about the unsatisfactory
performance before the dismissal.
87 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542].
[2016] FWC 6018
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[124] In this case, the reasons for dismissal related to Mr Kedwell’s conduct, rather than his
performance, so this consideration is not relevant.
Impact of size of Mt Thorley on procedures followed in effecting the dismissal (s.387(f))
[125] Mt Thorley is a large business enterprise. I do not consider that its size would be likely
to impact on the procedures followed in effecting Mr Kedwell’s dismissal.
Absence of dedicated human resource management specialists or expertise (s.387(g))
[126] Mt Thorley has dedicated human resource management specialists and expertise, so
this consideration is not relevant.
Other relevant matters (s.387(h))
[127] Section 387(h) of the Act provides the Commission with a broad scope to consider any
other matters it considers relevant.
[128] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable,
notwithstanding a finding that there was a valid reason for dismissal based upon conduct in
breach of employer policy was explained by the Full Bench majority in B, C and D v
Australian Postal Corporation T/A Australia Post88 in the following terms:
“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of
the Commission that a dismissal may be “harsh, unjust or unreasonable”
notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat
Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John
Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v
Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd
[2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001;
Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express
Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998)
82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002]
PR919205. That principle reflects the approach of the High Court in Victoria v
Commonwealth and is a consequence of the reality that in any given case there may be
“relevant matters” that do not bear upon whether there was a “valid reason” for the
dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.
[42] Broadly speaking, circumstances bearing upon whether a dismissal for
misconduct is harsh, unjust or unreasonable fall into three broad categories:
(1) The acts or omissions that constitute the alleged misconduct on which the
employer relied (together with the employee’s disciplinary history and any
warnings, if relied upon by the employer at the time of dismissal) but otherwise
considered in isolation from the broader context in which those acts or
omissions occurred.
88 [2013] FWCFB 6191
http://www.fwc.gov.au/decisionssigned/html/2013fwcfb6191.htm
[2016] FWC 6018
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(2) The broader context in the workplace in which those acts or omissions
occurred. [This may include such matters as a history of toleration or
condonation of the misconduct by the employer or inconsistent treatment of
other employees guilty of the same misconduct.]
(3) The personal or private circumstances of the employee that bear upon the
substantive fairness of the dismissal. [This includes, matters such as length of
service, the absence of any disciplinary history and the harshness of the
consequences of dismissal for the employee and his or her dependents.]
[43] The determination of whether there was a “valid reason” proceeds by reference to
the matters in category (1) and occurs before there is a consideration of what Northrop
J described as “substantive fairness” from the perspective of the employee. Matters in
categories (2) and (3) are then properly brought to account in the overall consideration
of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the
existence of a “valid reason”.
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and
Heerey JJ observed (at p 460):
“Employers can promulgate polices and give directions to employees as they see
fit, but they cannot exclude the possibility that instant dismissal of an
individual employee for non-compliance may, in the particular circumstances
of an individual case, be harsh, unjust and unreasonable.”
[48] Thus, a finding that an employee has failed to comply with policies and
procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The
Commission has consistently applied the proposition that instant dismissal of an
employee for non-compliance with his or her employer’s policies may, in the
particular circumstances of an individual case, be harsh, unjust and unreasonable:
Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo
C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross
VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR
217 (Jupiters) at [12]-[13].”
[129] There are a number of “other matters” which are relevant to my determination as to
whether Mr Kedwell’s dismissal was harsh, unjust or unreasonable. I will deal with each of
them in turn below.
Mr Kedwell’s history of employment with Mt Thorley
[130] Mr Kedwell commenced employment with Mt Thorley in May 2008.
[131] On 27 July 2010, Mr Kedwell was issued with a final warning in relation to an
isolation incident. Mr Kedwell acknowledged at the time that his conduct was not acceptable
and he did not dispute the warning given to him.
[132] On 17 March 2014, Mr Kedwell was issued with a final written warning in relation to
unsafe behaviour, namely standing up in the back of a moving vehicle. On the same day Mr
http://www.fwc.gov.au/alldocuments/PR958003.htm
[2016] FWC 6018
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Kedwell was also issued with a final written warning for bullying. In particular, the warning
states:
“You undertook activities which constituted bullying. This included excluding … from
workplace activities by not allowing him to ride in light vehicles with you and others,
not assisting with work when … and … asked for assistance, and at times ignoring
these employees which impacted on their ability to undertake work in a safe and
effective manner. You also provided misinformation to leaders in the business about
… in efforts to further exclude and bully him in the workplace.
…
This letter constitutes a Written Warning. Any further breaches will result in further
disciplinary action, which may include termination of your employment. A copy of
this letter will be placed on your personnel file…”
[133] As referred to above, Mr Kedwell now accepts that he engaged in this bullying
conduct in 2014 and he accepts that it was reasonable for Mt Thorley to have regard to this
prior conduct in making its decision concerning the potential termination of his employment
in March 2016.
[134] The fact that in February 2016 Mr Kedwell engaged in a second substantial act of
bullying another employee following his earlier bullying conduct in 2014 is a highly material
consideration which, while not being determinative, is adverse to the conclusion that Mr
Kedwell’s dismissal was harsh, unjust or unreasonable.89
[135] In the 12 months prior to his dismissal, Mr Kedwell was working in the position of
Field Maintenance Training. In that role, Mr Kedwell was responsible for reviewing Mt
Thorley’s procedures and policies in relation to safety. That was a position of responsibility.
That Mt Thorley placed Mr Kedwell into the role demonstrates that his employer considered
him responsible enough to review Mt Thorley’s safety policies and procedures. This indicates
that his performance and conduct had improved after the warnings issued to him in March
2014.
Mt Thorley’s investigation
[136] Mr Kedwell contends that Mt Thorley’s investigation into the events of 11 February
2016 was deficient and unfair for a large number of reasons, including the following:
(a) Mt Thorley’s Managing Performance Policy provides, so it is contended by Mr
Kedwell, that the investigation “must be conducted by the Manager once Removed
(MoR). Mr Jackson, who conducted the investigation, was not Mr Kedwell’s
Manager”;90
(b) Mr Jackson failed to consider the diagram prepared by Mr Kedwell but asked
management interviewed to draw diagrams where the factual circumstances of the
road incident were critical;
89 Toll Holdings Ltd t/a Toll Transport v Johnpulle [2016] FWCFB 108 at [15]
90 Mr Kedwell’s final written submissions at [36]
http://www.fwc.gov.au/decisionssigned/html/2016fwcfb108.htm
[2016] FWC 6018
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(c) Mr Kedwell failed to interview Mr Craig Robinson, who Mr Kedwell contends was an
independent witness to the road incident because he was driving behind Mr Kedwell
on the Golden Highway on 11 February 2016;
(d) Mr Jackson made “ongoing referencing to the safety share prepared by Mr Metcalfe in
regard to a person being suicidal at work”;91
(e) Mr Jackson failed to provide Mr Kedwell with a copy of the diagrams drawn by Mr
Bower and Mr Mullard;
(f) Mr Jackson assumed, according to Mr Kedwell, that there was some wrongdoing
because Mr Kedwell was keeping notes but Mr Jackson was aware that managers were
keeping notes;92
(g) Mr Jackson’s questions and findings “demonstrate a closed mind highly affected by
the ongoing long standing harassment against” X;93 and
(h) Mr Jackson failed to comply with Mt Thorley’s own investigation process by failing
to gather evidence from appropriate persons and consider the employee’s response.
[137] As to subparagraph (a) above, the Managing Performance Policy provides as follows:
“6.1 …While the employee’s MoR (Band H minimum) is responsible for the
investigation being carried out, they may delegate this responsibility to an employee in
Band I or J role (where appropriate).”
[138] The investigation into the events on 11 February 2016 was carried out by Mr Jackson,
Superintendent – Field Maintenance at the relevant time. Mr Jackson gave unchallenged
evidence that Mr Kedwell reported to Mr Flanagan, Supervisor, who reported to Mr Jackson.
Accordingly, Mr Jackson was Mr Kedwell’s MoR. It follows that the policy was not
contravened in the way contended for by Mr Kedwell.
[139] As to subparagraph (b) above, I reject the contention that Mr Jackson failed to
consider the diagram prepared by Mr Kedwell. Mr Jackson gave unchallenged evidence that
Mr Kedwell showed him a map he had drawn and explained various aspects of it.94 Mr
Jackson was not required for cross examination.
[140] As to subparagraph (c) above, Mr Jackson interviewed eight employees and one
contractor during his investigation into the events of 11 February 2016. In addition to Mr
Kedwell, Mr Neuss, Mr Fay and X, Mr Jackson was provided with information about the
incident from Mr Bower, Mr Mullard and Mr Flannery, who were driving on the Golden
Highway at the time of the incident. Mr Bower, Mr Mullard, Mr Flannery and X gave
consistent evidence that the traffic was unusually slow on the Golden Highway on 11
February 2016. In those circumstances, I am satisfied that it was not unreasonable or unfair
for Mr Jackson not to interview Mr Robinson during his investigation.
91 Mr Kedwell’s final written submissions at [65(c)]
92 Mr Kedwell’s final written submissions at [65(e)]
93 Mr Kedwell’s final written submissions at [66]
94 Ex R6 at [35]
[2016] FWC 6018
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[141] As to subparagraph (d) above, it was appropriate, in my view, for Mr Jackson to make
reference to the information provided by Mr Metcalf in a morning meeting on 17 February
2016. At that time Mr Metcalf shared information with his work colleagues about an incident
at another workplace where an employee had committed suicide because he had been
harassed at work. Mr Metcalf obviously did that because he was concerned about what was
happening to X and the fact that some employees may not appreciate the impact their conduct
can have on another person.
[142] As to subparagraph (e) above, during the hearing I was not taken to any diagram
prepared by Mr Bower or Mr Mullard, nor was any witness asked any questions about such
diagrams. In those circumstances, I do not see how the provision of any such diagrams to Mr
Kedwell during the investigation could have had a bearing on the outcome of the investigation
or the outcome of these proceedings. I reject the contention that the investigation was unfair
or deficient on the basis that Mr Jackson apparently failed to provide Mr Kedwell with a copy
of diagrams drawn by Mr Bower and/or Mr Mullard.
[143] As to subparagraph (f) above, Mr Jackson gave unchallenged evidence in his witness
statement that he found it “surprising that Mr Robbins [CFMEU official] had informed the
three employees involved to ‘keep notes’, as I believed it implied that he or the employees
were aware that an incident had occurred.”95 In my view, this comment by Mr Jackson does
not demonstrate unfairness in the investigation process.
[144] As to subparagraph (g) above, I have reviewed the questions asked by Mr Jackson
during his investigation, together with his findings. I am satisfied from that material that he
did not bring a closed mind to the investigation, nor do his questions or findings demonstrate
that he was highly affected by the ongoing long standing harassment against X.
[145] As to subparagraph (h) above, I am satisfied from Mr Jackson’s statement and his
report that he spoke to relevant witnesses, obtained sufficient information and considered the
responses to his questions before reaching his findings.
Comparative unfairness
[146] In final submissions counsel for Mr Kedwell contended that Mt Thorley had treated
Mr Kedwell unfairly compared to another employee, Mr Robinson, who allegedly drove in an
unsafe manner on 11 February 2016, but was not subjected to an investigation or any
disciplinary action.
[147] The first problem with this contention is that it was made for the first time in final
submissions. Mt Thorley was not given any prior notice that a comparative unfairness case
was being pursued by Mr Kedwell. In those circumstances, Mt Thorley was denied natural
justice and had no opportunity to lead evidence about Mr Robinson’s circumstances or why
no action was apparently taken against him.
[148] The second difficulty for Mr Kedwell’s comparative unfairness case is that, even on
the evidence before me concerning the way in which Mr Robinson drove on 11 February
2016, it is apparent that he did not attempt to “box” in another motorist or otherwise harass
95 Ex R6 at [46(g)]
[2016] FWC 6018
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another motorist. Taken at its highest, Mr Kedwell alleges that Mr Robinson drove unsafely
on the Mitchell Line of Road on 11 February 2016. The cases are not sufficiently similar to
warrant a finding that Mr Kedwell was treated unfairly compared to Mr Robinson.
No evidence from the decision maker
[149] Mr Kedwell complains that no evidence was led by Mt Thorley from the person who
made the decision to dismiss Mr Kedwell. That person was Mr Mark Rodgers, General
Manager. I reject this contention. It is not necessary for an employer to call the person who
made the decision to dismiss in unfair dismissal proceedings,96 and no unfairness arose in this
case from the fact that Mr Rodgers was not called to give evidence.
[150] Mr Kedwell also complains that Mt Thorley adduced third hand hearsay evidence of
the fact that Mr Rodgers authorised Mr Kedwell’s dismissal. I reject this contention. Mr
Jackson gave this hearsay evidence in his witness statement. No objection was made by Mr
Kedwell to the tender of Mr Jackson’s witness statement, nor was Mr Jackson required for
cross examination. Further, Mr Jackson attached to his witness statement the letter of
termination, which he signed with the approval of Mr Rodgers. There is nothing unusual or
problematic about a senior manager authorising another manager to sign a document such as a
letter of termination.
No witness statement from X
[151] Mr Kedwell complained in his final submissions that Mt Thorley did not provide a
witness statement from X.
[152] Mt Thorley sought, and was granted, an order to require X to attend the hearing to give
evidence. Mr Kedwell did not oppose such an order being made, nor did Mr Kedwell object to
any part of X’s oral evidence in chief or seek an adjournment to obtain instructions before
cross examining him. Further, counsel for Mr Kedwell cross examined X about a whole range
of matters, but did not cross examine him about whether he had refused to provide a witness
statement or had insisted on being called as a witness pursuant to an order from the
Commission. In those circumstances, I am not prepared to, and do not, find that Mr Kedwell
was prejudiced by reason of X giving oral evidence in chief without first having provided a
witness statement.
No Complaint by X
[153] Mr Kedwell points to relevant Mt Thorley policies and the requirement thereunder for
there to be a complaint as the trigger for an investigation to take place. Similarly, Mr Kedwell
relies on the statement in the 14 March 2016 letter from Mt Thorley to him that “a complaint
of bullying and harassment was made against you”. Mr Kedwell further says that X stated in
cross examination that he did not make a complaint against Mr Kedwell, with the result that
the investigation did not have a proper foundation.
[154] I reject this contention. Although X believed that he had not made a complaint against
Mr Kedwell, in my view his conduct constituted a complaint on which Mt Thorley was
obliged to act. In particular, X told Mr Still about the events that took place on 11 February
96 The Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744
[2016] FWC 6018
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2016. Mr Still asked X whether he was happy for Mr Still to take the matter further, to which
X said “yes, I’m happy for you to proceed”.97 X also provided Mt Thorley with a handwritten
statement describing what happened on 11 February 2016 and participated in interviews with
Mr Jackson during his investigation.
[155] In any event, even if X had not made a formal complaint about Mr Kedwell, once Mt
Thorley became aware that an event of the kind described by X in relation to his drive home
from work on 11 February 2016 may have occurred, Mt Thorley would, in my view, have
been obliged to investigate the matter and take appropriate action, if it was satisfied that such
conduct had in fact occurred.
Harshness of the dismissal
[156] Mr Kedwell’s dismissal has had significant negative consequences for his personal
and economic situation. In particular, he has lost a job which he enjoyed and which provided
him, his wife and child with a solid financial position. Mr Kedwell’s wife and child are
financially dependent on him. It is also relevant that Mr Kedwell was the Secretary of the Mt
Thorley Social Club and had a significant role in organising family and social events for all
staff and management at the mine who are members of the Social Club. Mr Kedwell has not
obtained full-time alternative employment. He has been undertaking some casual work since
his dismissal, but the income from that work is insufficient to meet his mortgage and other
living expenses. Mr Kedwell has been prevented by Mt Thorley from working for a contractor
at the Mt Thorley mine. Those matters must be weighed against the gravity of Mr Kedwell’
misconduct in respect of which Mt Thorley acted in deciding to dismiss him.
[157] Mr Kedwell’s conduct in participating in the bullying of X on 11 February 2016 was
unreasonable, without justification or provocation, and serious. Acting in a deliberate way to
“box” another motorist in from making a turn on a highway gives rise to a risk of a serious
motor vehicle accident. In addition, bullying conduct of the kind to which X has been
subjected, including the “boxing” in incident on the Golden Highway on 11 February 2016,
creates a serious risk to the health and welfare of the victim.
[158] There is no suggestion in the evidence that X has done anything towards Mr Kedwell,
or any other employee at work, to explain, justify or provoke them into acting unreasonably
towards him. There is no excuse for engaging in such conduct. It may seem a “joke” to the
“bully” at the time, but the victim does not see it that way, particularly when the conduct
continues over some time. Such conduct must be identified and acted on quickly and firmly
by employers.
[159] In the circumstances, I am satisfied that Mr Kedwell’s dismissal was not
disproportionate to the gravity of the misconduct in which he engaged, nor was it harsh in any
other sense.
Conclusion
[160] Mt Thorley had sound, defensible and well founded reasons for dismissing Mr
Kedwell on the basis of his conduct. In particular, Mr Kedwell’s dismissal was based on his
substantial breaches of Mt Thorley policies and his unreasonable harassment of another
97 Ex R2 at [19]
[2016] FWC 6018
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employee (X) on his way home from work. Mt Thorley undertook a detailed investigation
into Mr Kedwell’s conduct and the matters he raised. Mt Thorley gave Mr Kedwell every
chance to participate in the investigation and respond to the allegations made against him
before the final decision was made to terminate his employment. He was afforded procedural
fairness throughout the process. Mt Thorley’s decision to impose the sanction of termination
of employment was supported by a prior incident of bullying by Mr Kedwell in the
workplace.
[161] Having considered each of the matters specified in s.387 of the Act, I am satisfied that
Mt Thorley’s dismissal of Mr Kedwell was not harsh, unjust or unreasonable. Mr Kedwell’s
unfair dismissal application is therefore dismissed.
COMMISSIONER
Appearances:
Ms L Andelman, of counsel, together with Ms C Sauer, solicitor, on behalf of the applicant;
Mr J Darams, of counsel, together with Ms A Lynton, solicitor, on behalf of the respondent.
Hearing details:
2016.
Newcastle:
August, 24-25.
Printed by authority of the Commonwealth Government Printer
Price code G, PR584634
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
