1
Fair Work Act 2009
s.604 - Appeal of decisions
Mt Arthur Coal Pty Ltd t/a Mt Arthur Coal
v
Jodie Goodall
(C2016/4422)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT WELLS
COMMISSIONER JOHNS SYDNEY, 4 NOVEMBER 2016
Appeal against decision [2016] FWC 4129 of Commissioner Saunders at Newcastle on 1 July
2016 in matter number U2016/678.
DECISION OF VICE PRESIDENT HATCHER AND DEPUTY PRESIDENT WELLS
Introduction
[1] Mt Arthur Coal Pty Ltd (Mt Arthur Coal) has lodged an appeal, for which permission
to appeal is required, against a decision of Commissioner Saunders issued on 1 July 20161 and
an associated order issued by him on the same day2 (Order). In the Decision the
Commissioner found that Mt Arthur Coal’s dismissal of Mr Jodie Goodall was harsh, and that
the reinstatement of Mr Goodall to his former employment as an Operator with Mt Arthur
Coal was the appropriate remedy. The Order required the reinstatement of Mr Goodall and the
maintenance of the continuity of service not later than 15 July 2016. Mt Arthur Coal’s notice
of appeal, which was filed on 8 July 2016, sought a stay of the Decision and Order pending
the hearing and determination of the appeal. On 13 July 2016 the Commission (Hatcher VP)
refused the application for a stay order, so that the position as we understand it is that Mr
Goodall was reinstated shortly thereafter in accordance with the Order.
[2] The appeal was listed for hearing on 9 August 2016 in relation to the issue of
permission to appeal only. On 15 August 2016 an email was sent by the Commission to the
parties which relevantly stated:
“The Full Bench has determined that permission to appeal should be granted in this
matter, on the basis that it is considered that it is in the public interest that grounds 1(c)
and (d) set out in paragraph 2.1 of the notice of appeal filed on 8 July 2016 be
determined by the Full Bench. Full reasons for the decision to grant permission to
appeal will be provided in the Full Bench’s final decision in this matter.”
1 [2016] FWC 4129
2 PR582258
[2016] FWCFB 5492
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 5492
2
[3] The full hearing of the appeal proceeded on 9 September 2016. Shortly after the
appeal commenced, it became apparent that the parties were operating under the
misapprehension that the grant of permission to appeal was confined to the two appeal
grounds referred to in the email of 15 August 2016 (rather than those appeal grounds being
the basis upon which it was considered that the grant of permission generally would be in the
public interest). It may be accepted that there was a degree of ambiguity in the Commission’s
email which was responsible for this misapprehension having occurred. Accordingly the
parties were given an opportunity to file further written submissions in relation to those
appeal grounds they were unable to address at the hearing on 9 September 2016.
Factual background
[4] Mr Goodall commenced employment with Mt Arthur Coal on 16 May 2011. The
incident which caused his dismissal occurred in the early morning of 11 November 2015
when Mr Goodall was drawing towards the end of a 12.5 hour night shift during which he had
operated heavy equipment at Mt Arthur Coal’s mine site in the Hunter Valley. Prior to that
date Mr Goodall had an exemplary employment history, and his misconduct on that date
constituted the only blemish on his record prior to his dismissal on 9 February 2016.
[5] Mr Goodall’s misconduct came to the attention of Mt Arthur Coal’s management as a
result of an investigation into the use by employees and contractors of Channel 6 of its radio
system as a “chat channel” during the night shift of 10-11 November 2015, and the allegation
that some employees and contractors had used offensive language in the course of doing so.
Channel 6 was meant to be used for training purposes only, and employees and contractors
working in the pit were meant, as a safety measure, to remain contactable at all times on radio
Channel 1.
[6] The investigation identified that a large number of employees had used Channel 6 as a
“chat channel” on the night shift in question. This included Mr Goodall, who had been on the
channel for a total of 110 minutes during his 12.5 hour shift. More seriously, a number of
employees including Mr Goodall were recorded as having said a number of things on Channel
6 which were regarded by Mt Arthur Coal as inappropriate. In the Decision the Commissioner
found that Mr Goodall had made the following remarks during the shift on Channel 6:
(1) At approximately 4:39 am on 11 November 2015, in response to comments by
a colleague about the “rear end” of his truck getting “banged up”, Mr Goodall
said “that’s no good getting your rear end banged up” and “Parish would like
it”.
(2) At approximately 4:52 am on 11 November 2015, when talking about a
colleague, Mr Goodall stated that “he’d probably like a good teabagging”.
(3) At approximately 4:53 am on 11 November 2015, during a conversation about
Volkswagen Beetle cars, Mr Goodall stated that “that’s what, um, [Azn]3 calls
his beetle, a dung beetle”.
3 Mt Arthur Coal interpreted this as a reference to “an Asian”, but the Commissioner at paragraph [37] of the Decision
accepted Mr Goodall’s evidence that he was referring to “Azn”, a character on a television show called “Street Outlaw Farm
Trucks” who refers to his Volkswagen Beetle car as “the dung beetle”.
[2016] FWCFB 5492
3
(4) At approximately 5:10 am on 11 November 2015, in response to a question
about what book a colleague was reading, Mr Goodall stated “that book on 50
ways to eat cock”.
(5) At approximately 5:10 am on 11 November 2015, in response to the comment
“since when have you been covering your arse, Bounder”, Mr Goodall stated
“probably when you’re walking round in the bathhouse Parish”.
(6) At approximately 6:09 am on 11 November 2015, when talking about a
colleague at the gym, Mr Goodall stated “have your jatz crackers fall out?”4
[7] Additionally, Mr Goodall made the following comments during the course of a
conversation on Channel 6 with two other operators (which are identified as Speaker 4 and
Speaker 5) as follows (with Mr Goodall’s comments in bold):
“SPEAKER 5: Actually just on that, sorry to change the subject a little bit here. Hey
slim are you… you goin to that to that Reclaim Australia rally?
MR GOODALL: Wouldn’t mind goin to one but depends if we’re workin
SPEAKER 5: No me missus she’s like we’re… we’re goin to the one in em Cessnock
there next Sunday they wanna build that mosque there in Kurri Kurri
MR GOODALL: I got a car show to go to at Dungog on Sunday I think but um
yeah otherwise I’d go to it
SPEAKER 4: If I went to them sorta shows there… them Reclaim things they just get
outta hand ey and I’ll end up getting locked up
SPEAKER 5: Oh man I can’t I can’t oh yeah I can’t handle it how Australians get
walked on all the time now. I wish we had that bloody Putin bloke from Russia
running our country
MR GOODALL: It’s not just Australia it’s friggin everywhere everyone’s just
bend over backwards for the Muslims
SPEAKER 5: Did you see that thing on 60 Minutes? Do you watch 60 Minutes
Sunday night?
MR GOODALL: Na didn’t no what’s it about Putin?
SPEAKER 5: No they had this couple this two white Australian couple and um they
met when the Cronulla riots were on anyway they they tried to get away form it like
the Cronulla riot side of it, went to this pub. That night they didn’t know what
happened during the day they’re walking home and 6 Lebs jumped out and bloody like
em stabbed old mate and tried to bloody bash his missus or the chick he met and all
this shit ey. Crazy
4 Decision at [35]
[2016] FWCFB 5492
4
MR GOODALL: Ah they had 1400 years of bloody inbreeding so they gotta be
fucked up
SPEAKER 4: They should have do what the national parks and wildlife do every year
and what the government should. You know the National wildlife put out tags to
professional shooters and just cull roos. They should the government should just put
out tags to professional hitmen and just cull dirt bag Australians or you know, people
that don’t deserve to be in this country
SPEAKER 5: Oh Dez? You’re all over it I’m hearin ya. No one the problem is the
worst is people get too scared to say anything and that’s why I take my hat off to that
Reclaim Australia. They’re not racist they’re not talkin about race they’re talkin about
the religion and they’re sayin everyone’s had a gut full of it. We’re just a complete
gutful of how they just think they can just run the whole show change our way of life
it’s crazy
MR GOODALL: Exactly yep.”
[8] It was Mr Goodall’s comments as part of the above conversation which attracted the
most attention in the appeal. These comments were not private to the participants, but could
be heard by any employee or “contractor” (that is, an employee of a business contracted to
provide labour to Mt Arthur Coal) on the night shift of 10-11 November 2015 who was tuned
into Channel 6.
[9] It was not in dispute in the appeal that Mr Goodall was aware of and had been trained
in the Code of Business Conduct (Code) of BHP Billiton, of which Mt Arthur Coal is a
subsidiary. The Code prohibited behaving in a way that was “offensive, insulting,
intimidating, malicious or humiliating”, making “jokes or comments about a person’s race,
gender, ethnicity, religion, sexual preference, age, physical appearance or disability”,
assuming that “acceptable behaviours are the same for every culture”, and the “use of BHP
Billiton resources to distribute offensive materials”, and required employees to “treat
everyone with respect and dignity” and “be prepared to adapt your own behaviour in
response to feedback or when considering cultural considerations of another operational
country”. There was also a separate requirement in Mt Arthur Coal’s “Surface Transport
Management Plan” (STM Plan) to ensure that usage of the radio system was in accordance
with the Code.
[10] The matter was first raised with Mr Goodall by the Open Cut Examiners later in
November 2015. When they did so, Mr Goodall apologised for both his use of Channel 6 to
engage in chat and comments he made. He did not thereafter engage in conversation on
Channel 6 at any time prior to his dismissal.
[11] As part of Mt Arthur Coal’s investigation of the matter, Mr Goodall was required to
attend a meeting with a manager and a supervisor (Mr Redman and Mr Shadbolt) on 8
January 2016, during which an audio recording of some of the conversations on Channel 6 on
the night shift of 10-11 November 2015 in which he participated was played. The notes of the
meeting record that Mr Goodall explained that he was on Channel 6 as a “fatigue thing in the
early morning” and had been asked to go on the channel by another operator. He admitted that
the conversation did not fit within the “charter values” of the company. The Commissioner
[2016] FWCFB 5492
5
found that Mr Goodall also apologised for his conduct at this meeting. The notes of the
meeting further disclose that Mr Goodall also said he was just “mucking around” and it was
“just blokes having a laugh”. Mr Redman asked Mr Goodall about the discussion he had
about Muslims, and Mr Goodall said:
Muslims were a subject that persons “strongly talk about” and “people know me and
my thoughts on the matter”;
“Everything I said is true”;
when asked about executing Muslims, said he would not do it personally but did not
have much of an issue with it, and “Muslims didn’t have a problem with executing
us”;
stated that there were big issues with Muslims and Islam in Australia and referred to
the Lindt café siege.
[12] Mr Goodall also said that he did not consider the matter serious and it was “BHPB’s
way of pissing people off and stripping morale off us”, and that the most extreme thing he said
was “fucked up”. At the end of the meeting Mr Goodall was informed that he was stood down
pending the outcome of the investigation.
[13] On 19 January 2016 Mr Goodall was required to attend another meeting with Mr
Redman and Mr Shadbolt. He attended in the company of a workplace representative of his
union. During the meeting he apologised for his conduct on the 10-11 November 2015 night
shift by saying words to the effect of “I apologise” and “I am truly sorry”. On 20 January
2016 Mt Arthur Coal sent Mr Goodall a letter setting out the findings of the investigation,
which were in summary that he had been on Channel 6 in breach of the STM Plan and had
thereby risked the safety of himself and other workers, and had engaged in inappropriate
conversation which contained terms that might reasonably be viewed as offensive, had
demonstrated a lack of respect for other persons, contained comments which were sexual in
nature and which might reasonably be viewed as offensive, and which contained comments
and language that might offend people of a particular race or religion and which expressed
and incited derogatory views of people of a particular race or religion, in breach of the Code
and the “BHP Billiton Charter Values of Sustainability, Integrity, Respect and
Accountability”. It may be noted that, in particularising the actual comments made by Mr
Goodall which were the subject of the findings, the letter included the following:
“...In response to the comment ‘we’re just a complete gutful of how they just think they
can just run the whole show change our way of life it’s crazy, you said ‘Exactly,
Yep’.”
That is, it was not alleged that Mr Goodall’s comment was an affirmation of Speaker 4’s
comment concerning a “cull” of “dirt bag Australians or ... people that don’t deserve to be in
this country”.
[14] The letter at its conclusion required Mr Goodall to show cause why his employment
should not be terminated.
[2016] FWCFB 5492
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[15] On 27 January 2016 Mr Goodall sent a letter in response to the request that he show
cause why he should not be dismissed. His letter included the following:
He accepted that his behaviour was not appropriate, but he had heard similar
comments to those he had made on a regular basis while employed at Mt Arthur
Coal from other operators and from management. This included himself being
referred to by a Supervisor as a “fuckwit”.
He had attempted to avoid fatigue on the 12.5 hour shift by keeping himself engaged
in conversations on Channel 6, and he and his colleagues often “talk rubbish” to
avoid fatigue.
He held a particular view about terrorism and the threat it posed to Australia, and
had on a number of occasions discussed his view in relation to Muslims with work
colleagues who shared the same view. He was not aware of any Muslims working at
the mine and, had a Muslim been employed on his crew, he would not have
discussed his view on Channel 6.
He was apologetic if he had offended anyone, which was not his intent, and
undertook not to make such comments again on the two way radio.
He valued his employment and sincerely apologised for the current position he had
let himself get into.
He had not been recently trained in the company policies regarding conduct, and if
he was retained in employment he would undertake any further training that was
deemed necessary.
[16] As earlier stated, Mr Goodall was dismissed on 9 February 2016. The termination
letter issued to him on that date repeated the outcome of the investigation process as stated in
the 20 January 2016 “show cause” letter. Its conclusion was:
“I have taken into account your personal circumstances. However, your conduct was
both unsafe and highly inappropriate. As such, the decision has been made to terminate
your employment at Mt Arthur Coal immediately.”
[17] Mr Goodall was paid three weeks’ wages in lieu of notice and his accrued leave
entitlements.
[18] Of the other two participants in the conversation involving Mr Goodall and concerning
Muslims, one was an employee and the other was a contractor. The employee was also
dismissed, and the contractor was barred from the site. Other employees who had participated
in Channel 6 conversations during the night shift of 10-11 November 2015 were subjected to
disciplinary sanctions short of dismissal.
[19] As a consequence of his dismissal, Mr Goodall was unemployed until mid-May 2016,
and during that time he and his family faced financial hardship. He was subsequently able to
find casual work with a labour hire company in the mining industry at a much lower rate of
pay than he had enjoyed at Mt Arthur Coal.
[2016] FWCFB 5492
7
The Decision
[20] In the Decision the Commissioner, after addressing the preliminary matters required to
be considered under s.396 of the Fair Work Act 2009 (FW Act), turned to the matters he was
required to take into account under s.387. In relation to s.387(a), the Commissioner found that
there was a valid reason for Mr Goodall’s dismissal relating to his conduct on two bases. The
first was that, while the Commissioner accepted that Mr Goodall had engaged in
conversations on Channel 6 in order to combat fatigue and stay alert towards the end of a long
night shift5, his conduct in that respect was nonetheless in breach of Mt Arthur Coal’s STM
Plan and represented a risk to safety.6 The second was that certain comments made by Mr
Goodall during those conversations (which we have earlier set out) were inappropriate and in
breach of the Code and the STM Plan. In this respect the Decision stated:
“[40] The comments made by Mr Goodall set out in paragraph [35] above breached his
obligations under the Code and the STM Plan in the following ways:
(a) he made comments which may reasonably be viewed as offensive;
(b) he demonstrated a lack of respect for other persons;
(c) he made comments which were sexual in nature and may reasonably be
viewed as offensive; and
(d) he made comments and used language which may have offended people of
a particular race/religion and which expressed and incited derogatory views of
people of a particular race/religion.
[41] Mr Goodall’s conduct in making inappropriate comments over the two-way radio
system and thereby engaging in substantial breaches of his employer’s policies gave
Mt Arthur a sound, defensible and well founded reason for dismissal related to his
conduct. Accordingly, I find that Mt Arthur had a valid reason to dismiss Mr Goodall
related to his conduct in making inappropriate comments on the two-way radio system
during the Shift.”
[21] In relation to s.387(b) and (c), the Commissioner in substance concluded that Mr
Goodall was afforded procedural fairness prior to his dismissal.7 The findings made by the
Commissioner in relation to s.387(d)-(g) were uncontroversial and it is not necessary to repeat
them.
[22] In relation to s.387(h), the Commissioner was required to take into account any other
matter which he considered relevant. The Commissioner identified six matters which he
considered led to the conclusion that Mr Goodall’s dismissal was harsh. The first was the
length and quality of Mr Goodall’s employment record with Mt Arthur Coal, which we have
earlier described.
5 Decision at [30]
6 Decision at [32]-[34]
7 Decision at [51]-[54]
[2016] FWCFB 5492
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[23] The second was the gravity of Mr Goodall’s misconduct. In relation to the safety risk
posed by Mr Goodall’s use of Channel 6 (and thus not being contactable on Channel 1), the
Commissioner found that “... those risks were both real and not trivial, but they are fairly
characterised as being towards the lower end of the scale...”, and gave reasons for this
conclusion.8 In relation to that aspect of Mr Goodall’s misconduct constituted by his
inappropriate comments, the Commissioner said (footnotes omitted):
“[67] Mr Goodall’s conduct in making the comments referred to in paragraph [35]
above over the two-way radio was clearly inappropriate. In considering the gravity of
that conduct, it is necessary to have regard to the nature of the comments, the
circumstances in which the comments were made and who they were directed at. In
particular:
(a) Mr Goodall swore when making the comments on the two-way radio
system. However, Mt Arthur concedes that profanities are commonly used at
the Mine and more generally throughout the mining industry. The gravity of
Mr Goodall’s conduct in swearing over the two-way radio is at the very low
end of the scale of seriousness;
(b) Mr Goodall made a number of crude, lewd and sexist comments on the
two-way radio system. He did so in an attempt to be entertaining to his work
mates. For example, Mr Goodall made the statement “that book on 50 ways to
eat cock” in relation to a chicken recipe book of which he is aware with the
title “50 ways to eat cock”. Mr Goodall was attempting to be funny because he
found the title of the cookbook to be humorous. Mr Goodall was engaging in
what he regarded as banter and chat with a number of his work mates over
channel 6 of the two-way radio system. They were stirring each other up and
were seeking to be entertaining. Mr Goodall and his work mates exercised poor
judgment in making such comments in the workplace. Their conduct in that
regard was inappropriate and in breach of a number of Mt Arthur’s policies.
Disciplinary action of some kind was warranted. However, I would not regard
such conduct on a single day at a mine site as being at the high end of the scale
of serious misconduct. Such conduct was towards the lower end of the scale of
seriousness; and
(c) Mr Goodall’s comments over the two-way radio concerning Muslims were
clearly inappropriate and in breach of a number of Mt Arthur’s policies. This is
the most serious aspect of the inappropriate comments made by Mr Goodall
over the two-way radio system. In fact, Mt Arthur submitted that the factor
which swayed it to terminate Mr Goodall’s employment was not the making of
lewd, sexist and crude comments, but the making of Islamaphobic comments.
If Mr Goodall had directed his comments concerning Muslims to any particular
employee or group of employees at the Mine, I would have regarded his
conduct at the high end of the scale of seriousness. However, Mr Goodall did
not direct his comments concerning Muslims to any person or group of people
at the Mine. Mr Goodall was not aware of any Muslims working at the Mine,
and he would not have made such comments if he was aware of any Muslims
working at the Mine. His comments concerning Muslims represent an
8 Decision at [66]
[2016] FWCFB 5492
9
expression by him of his personal views. He should not have expressed such
views at the workplace, particularly over a two-way radio system where up to
about 100 employees and contractors at the Mine could have heard and
potentially been offended by the comments, whether or not they were Muslim.
In fact, at least two employees complained to Mt Arthur management about the
inappropriate comments made over the two-way radio system during the Shift.
No evidence was adduced as to which parts of the comments caused the
complainants to raise their complaints with management, but the comments by
Mr Goodall about Muslims could well have been the catalyst for the
complaints. Employees and contractors are entitled to attend work and not be
subjected to commentary by other employees of a derogatory nature about
particular religions or races. I regard Mr Goodall’s expression of his own views
about Muslims over the two-way radio during the Shift as being in the mid-
range on a scale of seriousness.”
[24] The third matter was that the personal and economic consequences for Mr Goodall of
the dismissal were severe.9 The fourth matter was that there were some mitigating factors in
relation to Mr Goodall’s misconduct, in particular that his anti-Muslim comments were made
over a very short space of time. In this respect the Commissioner said (footnote omitted):
“[69] ... Those comments were made by Mr Goodall in the space of a very short period
of time (a couple of minutes, I infer from the transcript of the recordings) at about
6:25am, which was in the last hour of his 12.5 hour night shift. Having started the Shift
at 6:30pm on the previous evening, it is likely that the effects of fatigue on Mr Goodall
were most influential in his last hour or so of work on the Shift. In addition, all of the
inappropriate comments made by Mr Goodall during the Shift took place in a period of
about two hours, commencing at 4:39am on 11 November 2015. It is not alleged that
Mr Goodall made such comments over the two-way radio system, or elsewhere in the
workplace, at any other time during his employment at the Mine. Mr Goodall’s
misconduct in making the inappropriate comments on the two-way radio system from
4:39am until about 6:30am on 11 November 2015 can fairly be characterised as an
isolated and temporary failure by him to act in accordance with the values and
standards required of all employees and contractors at the Mine.”
[25] The fifth matter was that, although it was not officially authorised, there had been a
practice in which supervisors had participated to use Channel 6 as a chat channel, and to talk
on the channel as a means of staying alert during a 12.5 hour shift. The sixth matter was as
follows (footnote omitted):
“[71] The sixth relevant matter is my assessment that Mr Goodall is, and was during the
investigation into these matters, genuinely contrite and he accepts that his conduct
during the Shift was inappropriate and unacceptable. I observed Mr Goodall give
evidence in this matter. He is ashamed by his conduct. He is devastated by his
dismissal and the significant consequences of it for him and his family. Mr Goodall
knows that he “stuffed up; I made a mistake … I’ve learned my lesson”. I accept his
evidence in that regard. Mr Goodall came across as a truthful and reliable witness. He
gave evidence in a direct and frank manner. He also made numerous (appropriate)
concessions in answer to the propositions put to him in cross examination.”
9 Decision at [68]
[2016] FWCFB 5492
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[26] In dealing with the issue of contrition, the Commissioner took into account what Mr
Goodall had said at the meeting on 8 January 2016. As earlier stated, he made a positive
finding that Mr Goodall had apologised for his conduct at this meeting.10 As for the other
comments made by Mr Goodall at this meeting, the Commissioner said (footnote omitted):
“[78] Mr Redman was also concerned by a comment made by Mr Goodall in the
meeting on 8 January 2016 to the effect that “this is BHP’s way of pissing people off
and stripping morale off us”. I accept that Mr Redman had a legitimate reason to be
concerned about this statement by Mr Goodall in the investigation process. The reason
Mr Goodall made this statement was because he was informed in November 2015 that
there may be an investigation in relation to what was said during the Shift. Mr Goodall
was plainly concerned about the possibility of an investigation, but he heard nothing
more about it until he was called in to a meeting on 8 January 2016 and the allegations
were put to him. It was the two month delay and the fact that Mr Goodall was not told
during that delay of the fact that the investigation was proceeding that caused Mr
Goodall to be upset at the meeting on 8 January 2016. Mr Goodall’s initial response
was to perceive the eight week period as a deliberate strategy by Mt Arthur to delay
the investigation. He did not know the amount of time it had in fact taken for Mt
Arthur to undertake the analysis of which Operators were operating which vehicles
and equipment at various times during the Shift and to have all the relevant radio
recordings transcribed and assigned to the particular Operators working during the
Shift. Mr Goodall’s response was not one he should have made, but in the
circumstances I am satisfied that his initial response in that meeting did not detract
from the sincerity of his apology, his acceptance of his wrongdoing, or his promise not
to engage in such conduct in the future.
[79] Mr Redman expressed concern about statements made by Mr Goodall during the
investigation process in relation to Mr Goodall’s views about Muslims. The context of
these comments is important. Mr Redman asked Mr Goodall at the meeting on 8
January 2016 whether he would execute Muslims. Mr Goodall said that he would not.
Mr Goodall also went on to say words to the effect that “it would not bother me if it
did happen; Muslims do not have a problem with executing us”. They were personal
views Mr Goodall expressed, not to the workforce in general, or part of it, but in
answer to a direct question from a manager in an investigation. The fact that Mr
Goodall holds such views and gave an honest answer to a question from a manager
during an investigation does not, in my opinion, detract from what I consider to be the
genuine nature of his remorse for his conduct. I am satisfied that Mr Goodall now
understands his obligation not to make comments in the workplace which will or may
cause offense or demonstrate a lack of respect for others.
[80] Mr Redman construed Mr Goodall’s statements on 8 January 2016 to the effect
that (a) what happened on channel 6 during the Shift was “just blokes having a laugh”,
(b) “I believe my biggest fault is not being on channel 1”, and (c) “the most extreme
thing I said was ‘fucked up’” as a failure by Mr Goodall to appreciate the seriousness
of his conduct and caused Mr Redman to further doubt the sincerely of Mr Goodall’s
apologies. These comments by Mr Goodall need to be considered in context. Part of
the context includes the fact that these comments were all made after Mr Goodall had
10 Decision at [75]
[2016] FWCFB 5492
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accepted, at the start of the meeting that his comments did not fit with Mt Arthur’s
“charter values”. What Mr Goodall was seeking to point out was that he participated in
conversations during the Shift with a group of employees, all of whom voluntarily
engaged in what he believed to be banter and chat. Mr Goodall did not appreciate, at
the time he participated in the discussions during the Shift, that other employees who
may have been listening to the conversation on the two-way radio could have been,
and were, offended by the comments made by Mr Goodall and his work mates, even
though it is likely that none of the main participants in the discussion were offended at
the comments directed at them. Neither Mr Redman nor Mr Shadbolt heard the
conversations over the two-way radio during the Shift, but they were offended by them
when they read the transcript of the recordings. Mr Goodall’s appreciation of the
offence that he could have caused to others at the Mine did not evidence itself until he
submitted his response to the show cause letter. In that response, Mr Goodall did, in
my view, evidence his appreciation of the offence comments of this kind could cause
others at the workplace. For example, in his response Mr Goodall stated that he was
“apologetic if I have offended anyone, however it was certainly not my intent.” From
my observation of Mr Goodall giving evidence in the proceedings, he continues to
appreciate the offence such comments will or may cause to others. I am confident that
Mr Goodall will not make such comments in the workplace in the future.”
[27] The Commissioner rejected the argument advanced by Mr Goodall that he was treated
inconsistently with other employees who engaged in comparable conduct. His ultimate
conclusion was as follows:
“[84] After considering each of the matters specified in section 387 of the Act, I am
satisfied that Mt Arthur’s dismissal of Mr Goodall was harsh, but was not unjust or
unreasonable.”
[28] In relation to remedy, the Commissioner gave consideration to a detailed submission
advanced by Mt Arthur Coal that reinstatement should not be ordered because it had no trust
and confidence in Mr Goodall, having regard (among other things) to his failure to accept
responsibility for his conduct, the offence he caused, his disregard for Mt Arthur Coal’s
reputation, his offensive comments during the meeting on 8 January 2016 and his lack of
apology or remorse at that meeting. The Commissioner’s conclusions on this score were as
follows (footnote omitted):
“[88] ... it is necessary when assessing the appropriateness of an order for reinstatement
to consider whether Mr Goodall has demonstrated sufficient understanding that his
behaviour during the Shift was inappropriate and unacceptable such as to give rise to a
sufficient level of confidence that conduct of that type will not recur if he is reinstated
and the employment relationship will be viable and productive. For the reasons set out
in paragraphs [65] to [80] above, I am satisfied that Mr Goodall has demonstrated
enough self-awareness as to his conduct during the Shift to give rise to sufficient
confidence that such conduct will not recur if he is reinstated. I am satisfied that there
will be a viable and productive on-going relationship between Mr Goodall and Mt
Arthur, and that Mr Goodall will be able by his future conduct to regain the trust of
those employees and contractors he offended by making comments over the two-way
radio during the Shift. I make these findings having considered the submissions made
by Mt Arthur against reinstatement, as summarised in paragraph [86] above. I have
addressed those matters in paragraphs [11] to [41] and [65] to [80] above.
[2016] FWCFB 5492
12
[89] I therefore consider that the appropriate remedy in this case is an order under
s.391 of the Act reinstating Mr Goodall to the position in which was employed
immediately before the dismissal, namely as an Operator. I also consider it appropriate
to make an order under s.391(2)(a) to maintain the continuity of Mr Goodall’s
employment. However, I do not consider it appropriate to make any order for lost pay
under s.391(3). This is because Mr Goodall must bear a substantial degree of
responsibility for the financial consequences of his dismissal. The absence of an order
for lost pay will also reinforce to Mr Goodall that his conduct during his the Shift was
inappropriate and must not happen again.”
Appeal grounds and submissions
[29] Mt Arthur Coal’s notice of appeal contained nine grounds, but a number of grounds
overlapped with each other. The first ground of appeal was, in substance, that the conclusion
that the dismissal was harsh was illogical and irrational because, the Commissioner having
found that Mr Goodall had “expressed and incited derogatory views” about Muslims, Mr
Goodall’s conduct could not be excused or mitigated on harshness grounds, and could not be
subjected to a measure of seriousness or be found to be in the “mid-range of seriousness”. In
support of this appeal ground Mt Arthur Coal submitted:
the “mid-range” finding was irrational, illogical and perverse, in that it proceeded on
the flawed premise that conduct on the nature of that engaged in by Mr Goodall
could be placed on a scale of seriousness, detracted from and ignored the objects of
the FW Act, and defeated the purpose of Mt Arthur Coal’s prohibitions on such
conduct;
it was irrational to assume that such conduct was less serious because it was not
directed at any Muslim person, given that it was found to constitute incitement – that
is, to engender bigoted views amongst non-Muslims; and
the Commissioner’s finding that the conduct was inappropriate was a “hollow
statement that failed to truly characterise the seriousness of the misconduct in
question”.
[30] In a related appeal ground (Ground 6), Mt Arthur Coal contended that the finding that
the matters considered pursuant to s.387(h) “outweighed” the findings made in relation to
s.387(a)-(g) was unreasonable and/or plainly unjust and constituted a failure to properly
exercise the discretion. It was submitted that where Mt Arthur Coal had introduced a policy to
remove discrimination and bigotry from its workplace and to comply with legislative
obligations in that respect, it was plainly unjust for it to be found that it had acted unfairly by
dismissing an employee who had actively and knowingly engaged in prohibited conduct. It
referred in this connection to the Full Bench decision in Harbour City Ferries Pty v Toms11 in
which a decision at first instance that a dismissal was unfair notwithstanding there was a valid
reason for dismissal was overturned on appeal on the basis that the centrality of the need to
comply with a fundamental workplace policy had not been considered. It submitted:
11 [2014] FWCFB 6249
[2016] FWCFB 5492
13
“The Respondent's bigoted conduct was, and is, reprehensible in the workplace.
Whatever his personal opinions, his bigoted incitement of derogatory views of
Muslims in the workplace calls for a proper expression of opprobrium by the
institution that is the peak industrial tribunal in Australia.”
[31] Appeal ground 2 was that the Commissioner erred by taking into account irrelevant
considerations, namely that Mr Goodall’s comments were not directed to any particular
persons and Mr Goodall was not aware of any Muslims working at the mine; that Mr
Goodall’s comments were made in a very short period of time; and that the comments were
made over Channel 6 of the radio system. Appeal ground 3 was that the Commissioner erred
by failing to take into account a relevant consideration, namely that to incite derogatory views
of Muslims is to encourage other persons to hold those same derogatory views. Appeal
ground 4 was that the Commissioner failed to carry out the statutory task required under the
FW Act and/or failed to take into account relevant considerations by failing to consider the
totality of the misconduct in aggregate, which constituted multiple breaches of multiple
policies, and failing to give weight to the finding that there were valid reasons for dismissal.
In relation to these grounds, Mt Arthur Coal submitted:
the fact that the comments were made to co-workers thought to be non-Muslims
aggravated rather than mitigated the conduct, because that was the essence of
incitement, which the Commissioner failed to take into account;
the fact that the conduct occurred over a short period, and occurred over what some
described as a “chat channel” was not relevant to the proper characterisation of the
conduct;
the Commissioner considered the seriousness of discrete aspects of Mr Goodall’s
conduct, but not the seriousness of the totality of the conduct;
the Commissioner should have first characterised the conduct objectively in its
totality before considering, in light of the seriousness of the conduct, whether there
was a valid reason to dismiss and then whether the dismissal was harsh having
regard to all the circumstances.
[32] In appeal ground 5, Mt Arthur Coal contended that the Commission had made the
following significant errors of fact:
(1) in paragraph [69] of the Decision that the effects of fatigue were most
influential at the time Mr Goodall made his anti-Muslim comments, in
circumstances where there was no evidence that fatigue was a causative factor
and Mr Goodall did not stop work because of fatigue;
(2) in paragraph [71] of the Decision that Mr Goodall was genuinely contrite
during the investigation, in circumstances where his comments at the meeting
on 8 January 2016 (which we have earlier set out) did not indicate any
contrition; and
(3) in subparagraphs (a), (c) and (d) of [40] that Mr Goodall’s anti-Muslim
comments “may” reasonably be viewed as offensive or “may” have offended,
when on any objective view they were offensive.
[2016] FWCFB 5492
14
[33] Related to the second of the above alleged errors of fact was appeal ground 7, in which
it was contended that the Commissioner made a significant error of fact by failing to find that
Mr Goodall had no insight into, and did not appreciate the severity of his conduct.
[34] Grounds 8 and 9 related to the order for reinstatement. Ground 8 contended that the
Commissioner made a significant error of fact by finding that Mr Goodall would be able to
regain the trust and confidence of those employees and contractors that he offended by his
comments on Channel 6 by his future conduct. Ground 9 was that the finding that it was
appropriate to reinstate Mr Goodall was unreasonable and/or plainly unjust having regard to
the Commissioner’s own findings about Mr Goodall’s conduct, and the Commissioner
thereby failed to properly exercise his discretion under s.391 of the FW Act.
[35] Mr Goodall submitted that:
the Decision was not illogical or irrational in that it was not arbitrary or capricious,
and Mt Arthur Coal’s submission that the Commissioner should have used alternate
reasoning did not meet the test for illogicality or irrationality;
it was not irrational to place Mr Goodall’s conduct on a scale of seriousness, since
this was an approach well supported by previous decisions in which the requirement
to assess the gravity of the misconduct was emphasised;
it cannot be said that there was no logical connection between the evidence and the
inferences or conclusion drawn by the Commissioner, nor that there was only one
conclusion open on the evidence;
for the same reasons it could not be said that the Decision was legally unreasonable;
the Commissioner accepted that Mr Goodall’s misconduct was serious, but he was
entitled to assess its degree of seriousness in determining whether dismissal was a
disproportionate response to that misconduct; in that context it was misdirected for
Mt Arthur Coal to submit that the objective seriousness of the misconduct should
have been treated as absolute;
the fact that Mr Goodall’s anti-Muslim comments were not directed to any person or
group, and that Mr Goodall was not aware of any Muslims working at the mine was
relevant to the Commissioner’s consideration of the seriousness of the conduct for
the purpose of determining harshness, as was the length of time that Mr Goodall
spent making the comments;
reading the decision as a whole and fairly, it was clear that the Commissioner did
consider the totality of Mr Goodall’s conduct, in that every aspect of the conduct was
considered within the rubric of s.387;
the finding that the effects of fatigue were most influential in his last hours or so
working on the shift was well supported by a range of evidence before the
Commissioner that long shifts involving work in the early morning gave rise to
symptoms of fatigue which affected behaviour;
[2016] FWCFB 5492
15
likewise the conclusion that Mr Goodall was contrite was supported by evidence that
he apologised for his conduct to Mt Arthur Coal on a number of occasions prior to
his dismissal, and the Commissioner’s conclusion that Mr Goodall’s contrition was
genuine was based on a credit finding of him as a witness which ought not be
disturbed on appeal; and
the Commissioner’s assessment that Mr Goodall would be able to regain the trust of
his co-workers was similarly founded on his acceptance of the genuineness of Mr
Goodall’s contrition and his demonstration of self-awareness concerning his
conduct.
Consideration
Permission to appeal
[36] This appeal, having been brought against a decision made under Pt.3-2 of the FW Act,
is one to which s.400 applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation
to a matter arising under this Part can only, to the extent that it is an appeal on a
question of fact, be made on the ground that the decision involved a significant error
of fact.
[37] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v
Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and
Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. The task of
assessing whether the public interest test is met is a discretionary one involving a broad value
judgment.12 A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin,
identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive, or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters.”13
[38] As earlier stated, we communicated to the parties on 15 August 2016 that we had
decided to grant permission to appeal. We did so because two aspects of Mt Arthur’s appeal
raised a novel question, namely whether derogatory remarks in the workplace of the type
made by Mr Goodall - that is, remarks which vilify persons of a particular religion - are
12 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch
(2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
13 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
[2016] FWCFB 5492
16
capable of being assessed, like most forms of misconduct, on a range of seriousness, or
whether they constitute a form of misconduct which is sui generis and must be considered in a
distinct way. We considered that to be a novel question (at least in the way it was advanced in
Mt Arthur Coal’s submissions) that was likely to arise in other cases and in relation to which
Full Bench guidance would be desirable. For that reason, we concluded that the grant of
permission would be in the public interest.
Preliminary observations
[39] Before turning to Mt Arthur Coal’s appeal grounds and the submissions advanced in
support thereof, we consider it appropriate to make some preliminary observations about the
Decision and the legal framework in which it was made.
[40] It verges on being trite to say that the task of determining whether the dismissal of a
person who is protected from unfair dismissal was harsh, unjust or unreasonable involves the
exercise of a discretion. That discretion is a wide one, constrained only by the requirement to
take into account the matters specified in paragraphs (a)-(h) of s.387. Section 387(h) itself
confers on the decision-maker a wide scope to take into account matters which he or she
considers to be relevant. The determination of whether a dismissal is harsh, unjust or
unreasonable requires the making of an evaluative judgment by the decision-maker. In those
circumstances, no one consideration and no combination of considerations is necessarily
determinative of the result, and the decision-maker has some latitude as to the choice of
decision to be made. 14 The same principle applies to the making of a decision as to whether it
is appropriate to grant the remedy of reinstatement in respect of a dismissal which has been
found to be harsh, unjust and/or unreasonable.15
[41] In an appeal from a discretionary decision of this nature, an appellate tribunal is only
authorised to set aside the decision if error on the part of the decision-maker has been
demonstrated.16 This error must usually be of one of the types identified in House v The King
as follows17:
“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters
to guide or affect him, if he mistakes the facts, if he does not take into account some
material consideration, then his determination should be reviewed and the appellate
court may exercise its own discretion in substitution for his if it has the materials for
doing so. It may not appear how the primary judge has reached the result embodied in
his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court
may infer that in some way there has been a failure properly to exercise the discretion
which the law reposes in the court of first instance. In such a case, although the nature
of the error may not be discoverable, the exercise of the discretion is reviewed on the
ground that a substantial wrong has in fact occurred.”
14 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19]
per Gleeson CJ, Gaudron and Hayne JJ
15 Anderson v Thiess Pty Ltd [2015] FWCFB 478
16 Ibid at [21]
17 [1936] HCA 40; (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[2016] FWCFB 5492
17
[42] It follows that an appellate tribunal is not authorised to set aside a discretionary
decision on the basis of a preference for an outcome different to that determined by the first
instance decision-maker. In this connection, the High Court said in Norbis v Norbis18:
“The principles enunciated in House v. The King were fashioned with a close eye on the
characteristics of a discretionary order in the sense which we have outlined. If the
questions involved lend themselves to differences of opinion which, within a given
range, are legitimate and reasonable answers to the questions, it would be wrong to
allow a court of appeal to set aside a judgment at first instance merely because there
exists just such a difference of opinion between the judges on appeal and the judge at
first instance. In conformity with the dictates of principled decision-making, it would
be wrong to determine the parties’ rights by reference to a mere preference for a
different result over that favoured by the judge at first instance, in the absence of error
on his part. According to our conception of the appellate process, the existence of an
error, whether of law or fact, on the part of the court at first instance is an
indispensable condition of a successful appeal.”
[43] Nor is appealable error demonstrated by a contention that the decision-maker should
have given more or less weight to a particular consideration. In the High Court decision in
Gronow v Gronow Aickin J (with whom Mason and Wilson JJ agreed) said: “It is however a
mistake to suppose that a conclusion that the trial judge has given inadequate or excessive
weight to some factors is in itself a sufficient basis for an appellate court to substitute its own
discretion for that of the trial judge”.19 It is only where a relevant matter has been given no
weight because it was not considered at all that error in the exercise of the discretion will be
demonstrated.20
[44] In the Decision the subject of challenge in this appeal, the Commissioner considered
all of the matters he was required to take into account under s.387. There was no factual
dispute about the actual conduct - that is, the inappropriate comments made by Mr Goodall on
Channel 6 on 11 November 2015 - that caused his dismissal, so in at least that respect there
was no suggestion of any significant error of fact. The Commissioner upheld as valid under
s.387(a) the reasons given by Mt Arthur Coal for its dismissal of Mr Goodall. There was no
issue taken with the findings made pursuant to s.387(b)-(g). With respect to s.387(h), the
Commissioner identified the additional matters he considered to be relevant, and gave detailed
reasons as to why they were relevant and favoured the conclusion that the dismissal was
harsh. Having found that the dismissal was harsh, the Commissioner ordered reinstatement,
the primary remedy under the FW Act.
[45] The conclusion that Mr Goodall’s dismissal was harsh does not on its face appear to
be surprising, outlandish or counter-intuitive. Although it was not in dispute that Mr Goodall
misconducted himself on 11 November 2015, this was the only instance of misconduct in an
employment history which lasted almost five years and was otherwise entirely unblemished.
There was no evidence that any actual harm was caused by Mr Goodall’s conduct apart from
offence that was taken by the manager and supervisor who conducted the investigation into it.
There can be no doubt that the personal and financial consequences of the dismissal for Mr
18 [1986] HCA 17; (1986) 161 CLR 513 at 518-9 per Mason and Deane JJ
19 [1979] HCA 63; (1979) 144 CLR 513 at 537
20 See Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at [58] and the authorities cited there.
[2016] FWCFB 5492
18
Goodall were severe, and there was no challenge in the appeal to the Commissioner’s findings
in this respect.
[46] The fact that an employee has been dismissed because of the making of derogatory
comments about persons of a certain religion in or in connection with the workplace has not
in other cases prevented a conclusion that the dismissal was unfair in all the circumstances.
There are two pertinent examples of this. The first is Anderson v Thiess Pty Ltd.21 In that case
Mr Anderson was dismissed after he had disseminated anti-Muslim propaganda through his
employer’s workplace email system. He had previously been told, at least informally, not to
send emails about Muslims. Notwithstanding that it was found that there was a valid reason
for dismissal, the conclusion reached was that the dismissal “was harsh because of its
consequences for the personal and economic situation of Mr Anderson” and “unreasonable
because the conclusion that the misconduct engaged in by Mr Anderson was wilful on the
grounds that he had been previously warned about it, was not reasonably open on the material
before the employer”.22 Reinstatement was refused, substantially on the basis of “Mr
Anderson’s complete lack of contrition and his refusal to accept any culpability for his actions
or the serious implications that sending the email had”23, and he was awarded compensation.
Mr Anderson appealed against the decision on remedy, but failed to obtain permission to
appeal.24
[47] The second is Joseph Johnpulle v Toll Holdings Ltd.25 In that matter the applicant for
an unfair dismissal remedy, Mr Johnpulle, had engaged in conversation at work with a fellow
employee who was Afghani in ethnic origin and made comments of a taunting nature which
sought to link the fellow employee and the religion of Islam with killing and the Taliban. Mr
Johnpulle had previously engaged in conduct of this nature and had been informally warned
about it. This conduct was characterised as intended to “harass, vilify and victimise”, and was
found to constitute a valid reason for dismissal.26 Notwithstanding this the dismissal was
found, having regard to all the circumstances including the applicant’s service, age and the
impact of the dismissal, to be harsh because of the personal consequences of the dismissal and
the severity of the punishment given the absence of any sanctions for the earlier instances of
his conduct.27 Notably the decision made this comment about the issues raised by the
application:
“[89] My decision in this matter has been very carefully considered. The evidence
suggests that there is either a lack of awareness by Mr Johnpulle of appropriate
workplace conduct or a disdain of the need to treat others at work with respect and to
be sensitive to cultural, religious and ethnic backgrounds. It seems to me that these are
matters which require regular reinforcement in a diverse workforce. Just as Mr
Johnpulle would be appalled if his co-workers made assumptions about his
background, so he must understand that it is totally inappropriate to make assumptions
about others.
21 [2014] FWC 6568
22 Ibid at [76]
23 Ibid at [81]
24 Anderson v Thiess Pty Ltd [2015] FWCFB 478
25 [2016] FWC 1507
26 Ibid at [37], [39]
27 Ibid at [93]-[94].
[2016] FWCFB 5492
19
[90] Cultural and ethnic awareness however are not things that happen by the writing
of policies. It is through training and raising and discussion of issues that knowledge is
gained, understanding is reached and tolerance found.”
[48] The outcome in the Decision here therefore cannot be regarded as significantly
disharmonious with cases of a similar nature.
[49] It cannot reasonably be suggested that the Decision can be read as in any way
condoning or excusing Mr Goodall’s conduct, and the submissions to that effect advanced by
Mt Arthur Coal are rejected. As earlier stated, the Commissioner found that Mr Goodall’s
conduct constituted a valid reason for his dismissal. His comments, particularly the anti-
Muslim comments, were described by the Commissioner as inappropriate, unacceptable,
offensive, and as expressing and inciting derogatory views of people of a particular race or
religion.28 The dismissal was not found to be unjust or unreasonable, only harsh. No order for
lost pay was made in Mr Goodall’s favour on the basis that he bore a substantial degree of
responsibility for his dismissal and in order to ensure he understood that his conduct was
inappropriate and could not be repeated, and this amounted to an effective penalty upon him
of some tens of thousands of dollars.
[50] With these preliminary observations in mind we turn to the specific grounds for Mt
Arthur Coal’s appeal.
Appeal grounds 1 and 6
[51] Irrationality and illogicality have emerged from the concept of unreasonableness as a
ground for judicial review of administrative discretionary decision-making. In the High Court
decision in Minister for Immigration and Citizenship v SZMDS29, Crennan and Bell JJ, in
relation to judicial review of a decision made under s.65 of the Migration Act 1958, set out
the principles applicable to this ground of judicial review:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality"
sufficient to give rise to jurisdictional error must mean the decision to which the
Tribunal came, in relation to the state of satisfaction required under s 65, is one at
which no rational or logical decision maker could arrive on the same evidence. In
other words, accepting, for the sake of argument, that an allegation of illogicality or
irrationality provides some distinct basis for seeking judicial review of a decision as to
a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint
that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in
the sense that the state of satisfaction mandated by the statute imports a requirement
that the opinion as to the state of satisfaction must be one that could be formed by a
reasonable person. The same applies in the case of an opinion that a mandated state of
satisfaction has not been reached. Not every lapse in logic will give rise to
jurisdictional error. A court should be slow, although not unwilling, to interfere in an
appropriate case.
28 Decision at [40], [88]
29 [2010] HCA 16; (2010) 240 CLR 611
[2016] FWCFB 5492
20
[131] What was involved here was an issue of jurisdictional fact upon which different
minds might reach different conclusions. The complaint of illogicality or irrationality
was said to lie in the process of reasoning. But, the test for illogicality or irrationality
must be to ask whether logical or rational or reasonable minds might adopt different
reasoning or might differ in any decision or finding to be made on evidence upon
which the decision is based. If probative evidence can give rise to different processes
of reasoning and if logical or rational or reasonable minds might differ in respect of
the conclusions to be drawn from that evidence, a decision cannot be said by a
reviewing court to be illogical or irrational or unreasonable, simply because one
conclusion has been preferred to another possible conclusion.”
[52] In relation to the particular decision under consideration, Crennan and Bell JJ went on
to say:
“[135] On the probative evidence before the Tribunal, a logical or rational decision
maker could have come to the same conclusion as the Tribunal. Whilst there may be
varieties of illogicality and irrationality, a decision will not be illogical or irrational if
there is room for a logical or rational person to reach the same decision on the material
before the decision maker. A decision might be said to be illogical or irrational if only
one conclusion is open on the evidence, and the decision maker does not come to that
conclusion, or if the decision to which the decision maker came was simply not open
on the evidence or if there is no logical connection between the evidence and the
inferences or conclusions drawn. None of these applied here. It could not be said that
the reasons under consideration were unintelligible or that there was an absence of
logical connection between the evidence as a whole and the reasons for the decision.
Nor could it be said that there was no probative material which contradicted the first
respondent's claims. There was. ...”
[53] Although we are dealing here with an appeal by way of re-hearing and not an
application for judicial review, we consider that we should apply the principles set out above
with respect to Mt Arthur Coal’s invocation of irrationality and illogicality in its first appeal
ground.
[54] It is uncontroversial that the Commissioner was, in the exercise of his discretion,
required to make an assessment of the gravity of Mr Goodall’s conduct. What Mt Arthur Coal
challenges is the process of reasoning by which the Commissioner went about this task -
namely, by attempting to place the particular conduct in a range or scale of seriousness - and
the outcome this process of reasoning produced. In the case of the anti-Muslim comments,
which was the aspect of Mr Goodall’s conduct which ultimately caused Mt Arthur Coal to
decide to dismiss him,30 the Commissioner compared Mr Goodall’s conduct to a hypothetical
case where an employee made Islamophobic comments directly to a fellow worker or workers
at the workplace (who were, presumably, Muslim). The Commissioner then characterised Mr
Goodall’s conduct by way of contrast as involving the expression of personal views which
should not have been ventilated in the workplace, especially over a radio system where
potentially large numbers of workers might have heard them. He then concluded, on the basis
of that comparison, that Mr Goodall’s conduct was in the mid-range of seriousness.
30 Decision at [67(a)]
[2016] FWCFB 5492
21
[55] We consider there was room for a logical and rational person to adopt the
Commissioner’s process of reasoning, and to reach the conclusion that he reached using this
process of reasoning. The concept of comparing a case of conduct of a particular nature to
other actual or hypothetical instances of conduct of a similar nature in order to assess its
degree of seriousness is a well-known one. It is, for example, commonly used by courts in
assessing criminal and civil penalties to be imposed, and is a process of logic that may be
applied in sentencing for the most grave of criminal offences. It is also a familiar concept in
the unfair dismissal jurisdiction. For example, in the Full Bench decision in B, C and D v
Australian Postal Corporation31 the majority applied that process of reasoning in relation to
misconduct in the form of bringing pornography into the workplace:
“[64] The nature of material that will come within descriptors such as “inappropriate”,
“unacceptable” or “pornographic” and the like will present as a spectrum. The lines of
delineation between appropriate and inappropriate or acceptable and unacceptable are
not sharp because they are broad, even amorphous, terms in respect of which
reasonable minds might differ. Emailing pornography to a friend or other willing
recipient is objectively a less serious breach of policy than emailing pornography to
unwilling recipients or for the purposes of harassment.”
[56] We do not consider that there is anything intrinsically different about inappropriate
workplace comments which involve religious vilification which precludes the adoption of a
comparative analysis approach in order to assess its seriousness. That is not to say this is the
only process of reasoning to be used, but only that it is one approach that might be taken by a
logical or rational decision-maker.
[57] Nor do we consider that the actual comparison made by the Commissioner was
illogical or irrational. It is reasonable to conclude, for example, that for an employee to
personally direct anti-Muslim comments at a fellow employee who is known to be of the
Islamic faith is objectively more serious than the expression of anti-Muslim opinions to
fellow employees who are known to hold similar views, even where that is done in a manner
(as Mr Goodall did) where the opinions may be heard by other employees who may be
offended by them, because in the former case there is likely to be both the intention and effect
of degrading, belittling or humiliating a particular individual, while in the latter case such an
intention and effect are less likely. A recent example of the postulated worst-case scenario in
this analysis (in the context of racist, threatening and obscene comments) is the decision in
Sayers v CUB Pty Ltd32, where it was found that an applicant’s use of “offensive language and
verbal abuse” including “an offensive, degrading and racial slur” towards another employee
of Hispanic origin was found to constitute a valid reason for dismissal33, and despite the fact
that the applicant had 15 years’ service, an unblemished record and was remorseful, it was
also found that his dismissal was not unfair. Permission to appeal against this decision was
refused.34 Similarly in Seaman v BAE Systems Australia Logistics Pty Limited35 15 years’
service, an unblemished record, remorse and severe financial and personal circumstances did
not render the applicant’s dismissal for calling a colleague of Italian/Maltese extraction a
“fucking nigger” on two occasions unfair.
31 [2013] FWCFB 6191; 238 IR 1
32 [2016] FWC 3428
33 Ibid at [126]
34 [2016] FWCFB 5499
35 [2011] FWA 7005
http://www.austlii.edu.au/au/cases/cth/FWA/2011/7005.html
[2016] FWCFB 5492
22
[58] It is not suggested that reasonable persons undertaking this type of comparison would
necessarily arrive at the same conclusion as the Commissioner. However it was available to a
logical and rational decision-maker to reach that conclusion. It was not a capricious or
arbitrary one.
[59] Mt Arthur Coal’s submission that the Decision was irrational and illogical centred on
the fact that the Commissioner had described Mr Goodall’s conduct as constituting
“incitement”.36 Engaging in incitement against a particular religious group in the workplace is
undoubtedly a serious matter. However we do not consider that there is a proper basis for the
proposition that engagement in such conduct leading to dismissal necessarily precludes the
conclusion that the dismissal was harsh, unjust or unreasonable. There is nothing in the
objects of the FW Act which supports that proposition, and indeed to deal with an unfair
dismissal remedy application with that proposition as the a priori assumption would be
inconsistent with the requirement in s.387 to take into account whether a dismissed employee
has been afforded procedural fairness (paragraphs (b) and (c)) and all other matters which the
Commission member considers relevant (paragraph (h)), and with the object in s.391(2) to
provide both procedurally and substantively a “fair go all round” to all parties.
[60] In any event, we consider that the evidence demonstrates that Mr Goodall only
engaged in “incitement” in a confined sense. Mr Goodall and the two other persons who
engaged in the anti-Muslim conversation may be said to have incited each other, but only to
confirm and reinforce the bigoted views which they already held. Mr Goodall was clearly
recklessly indifferent to the fact that what he and the others were saying could be heard by
anyone tuned into Channel 6 at the time, which was potentially a large number of persons, but
we do not consider that the evidence supports the proposition that Mr Goodall intended to
“incite” such third persons.
[61] Accordingly we consider that there was nothing illogical or irrational about the
Commissioner’s assessment of the seriousness of Mr Goodall’s conduct.
[62] Mt Arthur Coal’s appeal ground 6 invoked what is sometimes referred to as the
“second limb” of the House v The King37 test for error in discretionary decision-making,
namely that the decision under appeal was unreasonable and plainly unjust and permitted the
inference to be drawn that the decision-maker failed properly to exercise the discretion
invested in him. In relation to appeals brought on this basis, the Full Bench in King v Catholic
Education Office Diocese of Parramatta38 said (footnotes omitted):
“[41] ...It is only where the outcome is demonstrated to be wholly outside the range of
outcomes reasonably available to the first instance decision-maker that the “manifest
injustice” ground of error will allow an appeal to be upheld without specific error
being identified. In the unfair dismissal context, if not generally, this will only occur in
rare cases.”
[63] Much of what was put in support of this appeal ground overlaps with appeal ground 1,
and we reject it for the same reasons. We consider it was reasonably available for the
36 Decision at [40(d)]
37 (1936) 55 CLR 499
38 [2014] FWCFB 2194; 242 IR 249
[2016] FWCFB 5492
23
Commissioner to conclude that the six matters he identified in relation to s.387(h) justified the
conclusion that the dismissal was harsh. That Mt Arthur Coal had introduced a policy
prohibiting the type of conduct in which Mr Goodall engaged could not by itself preclude the
conclusion that Mr Goodall’s dismissal was unfair. As was stated by the Full Bench majority
in B, C and D v Australian Postal Corporation, while “a substantial and wilful breach of a
policy will often, if not usually, constitute a ‘valid reason’ for dismissal”, nevertheless “[a]ny
notion that a clear and knowing breach of policy will always provide a valid reason for a
dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of
service and other circumstances, is inconsistent with basic principle. Every case must be
assessed by reference to its particular circumstances.”39 Harbour City Ferries Pty v Toms40,
which was cited by Mt Arthur Coal, does not stand for any contrary proposition; it was a case
decided having regard to its relevant circumstances. It was not even the case here that the
policy that Mr Goodall breached by making his anti-Muslim remarks, namely the Code, took
a “zero tolerance” approach which mandated dismissal as the only penalty. It stated that
“Corrective actions depend on the seriousness of the breach and other relevant
circumstances”, and nominated “discussions with supervisors or managers about desired
behaviours”, “a verbal or written warning” and “suspension” as possible disciplinary
sanctions alongside dismissal.
[64] Appeal grounds 1 and 6 are therefore rejected.
Appeal grounds 2, 3 and 4
[65] Some of the matters raised by the appeal grounds we have already considered and
rejected in relation to appeal grounds 1 and 6. We have already stated that the approach taken
by the Commissioner in his assessment of the gravity of Mr Goodall’s conduct was not
irrational or illogical, and the conclusion which he reached was reasonably available to him.
In the context of the analysis, we do not consider that it was irrelevant for the Commissioner
to take into account that Mr Goodall’s remarks were not directed at anyone in the sense that
they were not aimed at offending a targeted individual; that was a consideration which had a
rational connection to the seriousness of the conduct. For the same reason, we do not consider
it to have been irrelevant that the misconduct involving the anti-Muslim comments took place
over a couple of minutes in the course of a period of service which lasted almost five years, or
that Mr Goodall engaged in “chat” on Channel 6 to ward off the effects of fatigue in
accordance with a well-established practice. We have earlier dealt with the issue of
incitement, and we do not accept that this necessarily had to be taken into account in the way
it is framed in Mt Arthur Coal’s submission.
[66] We do not agree with the requirement postulated in Mt Arthur Coal’s submissions that
the “totality” of Mr Goodall’s conduct had to be considered prior to the Commissioner
engaging upon whether there was a valid reason for dismissal and then whether the dismissal
was harsh. Mt Arthur Coal had given discrete reasons for Mr Goodall’s dismissal based upon
various aspects of his conduct. That being the case, it was appropriate for the Commission in
relation to s.387(a) to consider each reason given and assess whether it was a valid reason for
dismissal. The Commissioner found that each reason given was a valid one, so that there was
no need for the Commissioner to then proceed to assess the validity of the reasons in their
totality. In relation to s.387(h), the Commissioner had a broad discretion to take into account
39 [2013] FWCFB 6191 at [36], [48]-[51]
40 [2014] FWCFB 6249
[2016] FWCFB 5492
24
those matters which he considered relevant. In the exercise of that discretion, the
Commissioner considered the gravity of each and every aspect of Mr Goodall’s misconduct,
being the safety risks posed by his use of Channel 6, his swearing, the various “crude, lewd
and sexist comments” he made41, and the anti-Muslim comments. We consider that was a
process of analysis that was reasonably available for the Commissioner to undertake having
regard to the different character of each aspect of Mr Goodall’s conduct. There is no one
process of analysis that s.387(h) either expressly or by implication requires the Commission
to undertake, nor is there any basis for an appellate Full Bench to impose a “decision rule”
requiring the discretionary decision-making process to be undertaken in a particular way.
[67] Appeal grounds 2, 3 and 4 are rejected.
Appeal grounds 5 and 7
[68] Mr Arthur Coal’s appeal grounds 5 and 7 allege errors of a factual nature. We have
earlier set out the three factual errors alleged in ground 5. We will deal with each of these in
turn.
[69] The first alleged error is that there was no factual basis for the statement made by the
Commissioner in paragraph [69] concerning the effect of fatigue. We disagree. The precise
statement the Commissioner made bears repeating “[h]aving started the Shift at 6:30pm on the
previous evening, it is likely that the effects of fatigue on Mr Goodall were most influential in
his last hour or so of work on the Shift”.42 We consider that this inference was reasonably
drawn by the Commissioner having regard to the fact that, in the last hour of his shift, he had
worked through the night operating heavy equipment for a period in excess of 11 hours. As a
matter of common sense, it is reasonable to infer a likelihood that there would be some effects
of fatigue by that time, and that they may influence behaviour. The inference is strengthened
by Mr Goodall’s evidence that he found it necessary to engage in chat on Channel 6 to stay
alert and combat the effects of fatigue. It is also confirmed by Mt Arthur Coal’s Fatigue
Management Procedure, which refers to the need to manage fatigue during the early hours of
the morning because of “the natural tiredness that even well-prepared shift workers can
experience in these hours”, and the evidence of other persons concerning the effects of
working 12.5 hour night shifts. The statement made by the Commissioner was not made as a
positive finding but only as an expression of a likelihood, and the Commissioner did not find
that fatigue actually caused or excused Mr Goodall’s conduct in respect of the anti-Muslim
comments, but treated it as a contextual circumstance.
[70] The second alleged error was that the Commissioner found that Mr Goodall was
genuinely contrite during the investigation. We do not consider that there was any such error
once it is understood that what Mr Goodall had to apologise for was not his anti-Muslim
opinions, which he was entitled to hold however bigoted they were, but for expressing those
views at work on a radio channel that was accessible, potentially, to a large number of fellow
workers. Mr Goodall apologised for his conduct at the initial discussion with the Open Cut
Examiners in November 2015, at the first investigation meeting with Mr Redman and Mr
Shadbolt on 8 January 2016 and in the second meeting on 19 January 2016, as well as in his
subsequent response to the show cause letter. More importantly Mr Goodall’s conduct
demonstrated his contrition and acceptance of wrongdoing; after the matter was first raised
41 Decision at [67(b)]
42 Decision at [69]
[2016] FWCFB 5492
25
with him by the Open Cut Examiners in November 2015, he did not engage in any
conversation on Channel 6 thereafter.
[71] Mt Arthur Coal’s contention of error in this respect rests on the other things which Mr
Goodall said at the meeting on 8 January 2016, which we have earlier set out. The
Commissioner dealt with these matters comprehensively, in the context of considering Mr
Goodall’s contrition, in paragraphs [77]-[80] of the Decision, which we have also earlier set
out in full. It is not necessary to say much more than that we consider the Commissioner’s
analysis to be correct. In particular, without derogating from the totality of the
Commissioner’s analysis, the anti-Muslim opinions which Mr Goodall expressed at this
meeting were, as the Commissioner explained, expressed in response to what was in
substance an invitation from Mr Redman to discuss the views he had heard expressed in the
recording of the Channel 6 conversation. Mr Goodall thereupon gave voice to his regrettable
and bigoted views in a frank and forthright fashion. That was not inconsistent with his
contrition for expressing such views on Channel 6.
[72] The third alleged error (or errors) was that the Commissioner found that the anti-
Muslim comments “may” reasonably be viewed as offensive or “may” have offended, not that
they were objectively offensive. We consider this submission to be merely a matter of
semantics. On a fair reading of the Decision, it is clear that that the Commissioner treated Mr
Goodall’s anti-Muslim comments as offensive.
[73] Ground 7 contends that the Commissioner erred by failing to find that Mr Goodall had
no insight into, and did not appreciate the severity of, his conduct. This ground is substantially
based on Mr Goodall’s conduct at the meeting on 8 January 2016, which we have already
discussed. Insofar as it relates to the evidence which Mr Goodall gave at the hearing before
the Commissioner concerning his contrition, we have already set out in full the findings
which the Commissioner made about this evidence in paragraph [71] of the Decision. This
included a finding that Mr Goodall accepted that his conduct during the 10-11 November
2015 night shift was inappropriate and unacceptable. The Commissioner, having the
advantage of seeing and hearing Mr Goodall give his evidence as it unfolded in its entirety,
accepted that evidence as truthful and reliable. We do not consider that Mt Arthur Coal has
demonstrated any proper basis to conclude that the Commissioner erred in making these
findings or that he should have made findings to the opposite effect.
[74] Grounds 5 and 7 are rejected.
Appeal grounds 8 and 9
[75] Appeal grounds 8 and 9 are related to the order for reinstatement. Ground 8 contended
that the Commissioner made a significant error of fact by finding that Mr Goodall would be
able to regain the trust and confidence of those employees and contractors that he offended by
his comments on Channel 6 by his future conduct. Ground 9 was that the finding that it was
appropriate to reinstate Mr Goodall was unreasonable and/or plainly unjust having regard to
the Commissioner’s own findings about Mr Goodall’s conduct, and the Commissioner
thereby failed to properly exercise his discretion under s.391 of the FW Act.
[76] The principles applying to the consideration of the grant of reinstatement as a remedy
were comprehensively discussed in the Full Bench decision in Nguyen v Vietnamese
[2016] FWCFB 5492
26
Community in Australia.43 That decision identified the restoration of trust and confidence as
being a significant but not the sole or even a necessary criterion in the determination of
whether reinstatement is appropriate, and defined the concept of trust and confidence as being
“that which is essential to make an employment relationship workable”.44 Whether trust and
confidence can be restored is to be assessed objectively on the basis of all the relevant
circumstances, and not on the basis of subjective opinion.
[77] To describe a finding made in relation to whether trust and confidence can be restored
upon reinstatement as one of fact, as Mt Arthur Coal does in its submission, is problematic. A
finding of that nature is necessarily conjectural, as it involves to a significant degree an
assessment about what is likely to happen in the future, and is better characterised as being in
the nature of an evaluative judgment. It is therefore akin to the exercise of a discretion and
should be approached as such in an appeal.
[78] The primary issue which arose for consideration before the Commissioner in respect
of remedy was whether there were proper grounds for confidence that Mr Goodall would, if
reinstated, never again engage in conduct of the type which occurred on the night shift of 10-
11 November 2015. That confidence was what was necessary to make the employment
relationship workable. As we have already stated, the Commissioner with the advantage of
having seen and heard Mr Goodall give his evidence was persuaded that he had a sufficient
understanding that his conduct was inappropriate, unacceptable and not to be repeated.
Nothing which has been put to us by Mt Arthur Coal has articulated a proper basis for the
Commissioner’s findings in this respect to be disturbed on appeal. That being the case, there
was a reasonable and rational basis for the Commissioner to conclude that Mr Goodall would
be able to regain the trust of his colleagues and thereby re-establish a viable working
relationship.
[79] Mt Arthur Coal’s submission that the decision to reinstate was “plainly unjust”
substantially relied on the same propositions advanced to support its submissions that the
conclusion that the dismissal was harsh was illogical, irrational, unreasonable and unjust. It is
rejected for the same reason. Once the Commissioner found the dismissal to be harsh, and that
it would be practicable to restore trust and confidence and thereby re-establish a viable
working relationship, it was reasonably open to him to conclude reinstatement was
appropriate and to make an order to that effect. It was equally reasonably open to him to
decline to make any order to compensate Mr Goodall for the remuneration lost as a result of
the dismissal in order to reinforce that his conduct had been inappropriate and could not be
repeated.
[80] Grounds 8 and 9 of the appeal are rejected.
Conclusion
[81] Mt Arthur Coal has not succeeded in demonstrating that the Decision was attended by
appealable error. Therefore we order that the appeal is dismissed.
DECISION OF COMMISSIONER JOHNS
43 [2014] FWCFB 7198
44 Ibid at [23]-[24]
[2016] FWCFB 5492
27
[82] I have had the opportunity to read the reasons for decision of Vice President Hatcher
and Deputy President Wells in draft form. Unfortunately, I find myself unable, with respect,
to agree with the majority in dismissing the appeal.
[83] I agreed with the majority that permission to appeal should be granted for the reasons
stated in the joint judgment of the majority.
[84] For my own part, for the reasons below, I would allow the appeal and quash the
decision of the Commissioner at first instance.
[85] On a rehearing I would not disturb the findings made at first instance by the
Commissioner in relation to s.387(a)-(g) of the FW Act. However, I would not find that the
termination of Mr Goodall was harsh, unjust or unreasonable. It was none of them.
Consequently, on a rehearing, I would dismiss the application for an unfair dismissal remedy.
[86] This is more than me expressing a preference for a different outcome. The ultimate
outcome, i.e. the reinstatement of Mr Goodall to his employment, was unreasonable and
plainly unjust when considered in the light of the duty to ensure a “fair go all round” is
accorded to both the employer and the employee concerned.45
[87] The nature of the House v King error required has been cited often,
“It must appear that some error has been made in exercising the discretion. If the judge
acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or
affect him, if he mistakes the facts, if he does not take into account some material
consideration, then his determination should be reviewed and the appellant court may
exercise its own discretion in substitution for his if it has the materials for doing so. It
may not appear how the primary judge has reached the result embodied in his order,
but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer
in some way there has been a failure properly to exercise the discretion which the law
reposes in the court of first instance. In such a case although the nature of the error
may not be discoverable, the exercise of discretion is reviewed on the ground that a
substantial wrong has in fact occurred.”46
[88] The submissions of the parties also traversed “illogicality” and “irrationality” as a
basis for appellate review. In Minister for Immigration and Citizenship v SZMDS that basis
was explained as follows,
“[A] decision will not be illogical or irrational if there is room for a logical or rational
person to reach the same decision on the material before the decision maker. A
decision might be said to be illogical or irrational if only one conclusion is open on the
evidence, and the decision maker does not come to that conclusion, or if the decision
to which the decision maker came was simply not open on the evidence or if there is no
logical connection between the evidence and inferences or conclusions drawn.”47
45 s. 381(2) FW Act
46 (1936) 55 CLR 499 at 505
47 [2010] HCA 16; (2010) 240 CLR 611, [135]
[2016] FWCFB 5492
28
[89] With respect, the Commissioner at first instance, in my opinion, failed to properly
exercise the discretion reposed in him. He took into account irrelevant matters in relation to
the comments made by Mr Goodall and failed to take into account relevant matters about the
known adverse impact of discrimination in the workplace.
[90] Further, the Commissioner’s findings that the gravity of:
a) the risk to Mr Goodall’s safety and the others at the Mine was at the lower end of
the scale;48
b) Mr Goodall’s crude, lewd and sexist comments were towards the lower end of the
scale of seriousness;49 and
c) Mr Goodall’s comments regarding Muslims in the mid-range on a scale of
seriousness,
were not findings that, with respect, a logical or rational person could reach.
[91] This is not a case of a difference of degree, impression or empirical judgment. There is
extensive literature50 about the effects of discrimination, including in the workplace. Making
jokes or comments that are inherently Islamophobic and homophobic is likely to negatively
affect the mental health of people in the workplace ranging from anxiety to depression. The
Commissioner should have taken “judicial notice” of the same.
[92] It is for this very reason that Mt Arthur has a Code of Business Conduct that expressly
prohibits behaving in a way that is “offensive, insulting, intimidating, malicious or
humiliating”, making “jokes or comments about a person’s race, gender, ethnicity, religion,
sexual preference, age, physical appearance and disability.” In implementing the policy,
promulgating it and conducting training for its employees (including Mr Goodall) with the
aim of eliminating discrimination in the workplace, Mt Arthur was fulfilling its obligations as
an employer under Federal and State legislation to ensure that its workplaces are free of
discrimination and harassment.
[93] In the face of a substantial and willful breach of that policy, Mt Arthur took the matter
seriously, and ultimately concluded that it was a valid reason for termination that was not
otherwise harsh, unjust or unreasonable. Requiring Mt Arthur to reinstate Mr Goodall in this
context is plainly unjust. Mt Arthur took decisive action to eliminate Islamophobia and
homophobia in its workplace. It should have been commended for its action, not punished by
being required to take Mr Goodall back.
[94] In my opinion the comments categorised as crude, lewd and sexist comments were
downplayed in their characterisation. The references to “getting your rear end banged up” and
to “Parish would like that” and “50 ways to eat cock”, covering your arse “when you’re
walking round in the bathhouse with Parish” were homophobic. The Commissioner failed to
properly characterise the (so called) crude, lewd and sexist comments as homophobic.
48 [66]
49 [67](b)
50 See the numerous publications here http://www.humanrights.gov.au/publications-home/all
[2016] FWCFB 5492
29
[95] Further, the Commissioner failed to attach an appropriate level of seriousness to these
homophobic comments in circumstances where Mr Goodall directed them at a particular
individual, namely, Mr Parish. Mr Goodall singled out and directly targeted Mr Parish with
these homophobic slurs. In this context, a finding that the “conduct was towards the lower end
of the scale of seriousness” cannot, with respect, be taken seriously.
[96] The reference to “teabagging” was a reference to a sexual act of male domination used
to humiliate a sexual partner. It has been written that,
“Tea bagging is not always carried out consensually, such as when it is done as a
practical joke, which, in some jurisdictions, is legally considered sexual assault or
sexual battery.”51
[97] The Commissioner failed to properly characterise the teabagging comment as an
incitement to engage in a sexual assault.
[98] When the crude, lewd and sexist comments are properly characterised any suggestion
that they are at the “lower end of the scale of seriousness” is, with respect, irrational.
[99] Turning then to the Islamophobic comments the Commissioner could have taken
“judicial notice” of the psychological damage caused by the same. For example in 2003-2004,
the Human Rights and Equal Opportunity Commission conducted a series of national
consultations with Arab and Muslim Australians, culminating in the publication of the Ismaع
report in 2005. That report found that,
“The biggest impact of prejudice on Arab and Muslim Australians is a substantial
increase in fear. 'Scared', 'isolated', 'uncomfortable', 'vulnerable' and 'alienated' were
words commonly used by consultation participants to describe individual responses to
racial abuse…”52
[100] When Mr Goodall’s deeply offensive and Islamophobic comments are properly
considered, it cannot logically follow that the comments where “mid-range”. Mr Goodall’s
conduct was a substantial and wilful breach of Mt Arthur’s policy. As the Commissioner
correctly found Mr Goodall “expressed and incited derogatory views of people of a particular
race/religion”. The subsequent down-grading of the gravity to “mid-range” beggars belief.
The fact that Mr Goodall was motivated by prejudice should have been an aggravating factor.
[101] The Commissioner correctly found that “up to 100 employees” could have heard Mr
Goodall’s comments and that “at least two employees complained to Mt Arthur management
about the inappropriate comments made over the two-way radio system during the shift.”53
However, the Commissioner then found that, because Mr Goodall did not direct “his
comments concerning Muslims to any particular employee or group of employees at the
Mine”, the conduct was at a lower end of the scale seriousness. The fact that Mr Goodall “was
not aware of any Muslims working at the Mine” was also relied upon by the Commissioner to
mitigate the seriousness of the conduct. In my opinion, Mr Goodall’s careless disregard for
whether, out of the 100 people who might have heard his comments, might be Muslim and be
51 https://en.m.wikipedia.org/wiki/Teabagging
52 http://www.humanrights.gov.au/publications/isma-listen-chatper-3
53 [67](c)
https://en.m.wikipedia.org/wiki/Sexual_battery
https://en.m.wikipedia.org/wiki/Sexual_assault
https://en.m.wikipedia.org/wiki/Practical_joke
https://en.m.wikipedia.org/wiki/Consent
[2016] FWCFB 5492
30
offended by them, should have been an aggravating factor and rendered the conduct more
than a mid-range breach.
[102] The findings of the Commissioner that other mitigating factors included that the
comments were made in a brief period of time, at the end of a long shift when the effects of
fatigue were likely to have had some influence, also, with respect, defy logic. The brevity of
Mr Goodall’s offensive comments was irrelevant. Further, there was no evidence before the
Commissioner that fatigue explains Islamophobic and homophobic comments. The link that
the Commissioner drew between fatigue and an explanation for the Islamophobic comments
was not a logical conclusion.
[103] In addition to the mischaracterisation of Mr Goodall’s comments, there was a failure
on behalf of the Commissioner to consider all of the comments in their totality. Each of the
examples of Mr Goodall’s conduct were considered by the Commissioner in isolation. A fair
reading of his decision does not disclose that the Commissioner considered the misconduct in
its totality (or in aggregate). He was required to do so and he failed to do so. His failing in this
regard was a further error on his behalf that should attract interest at the appellate level. If the
Commissioner had properly exercised his discretion he would have assessed each of the
comments made by Mr Goodall more seriously, found that the totality of the conduct
constituted serious misconduct and not determined that the other factors mitigated against the
same and rendered the termination harsh.
[104] The consequence of each of the Commissioner’s failings was his decision to reinstate
Mr Goodall. On any analysis this was a manifestly inadequate consequence for Mr Goodall’s
substantial and wilful breach of Mt Arthur’s policies. As such the decision falls within that
special category of a House v King error set out above. Quashing the decision at first instance
would also make it consistent with the decision of the Full Bench of this Commission in
Harbour City Ferries Pty Ltd v Toms54 where the applicant in that matter also engaged in
deliberate disobedience of policy and, on appeal, the application for an unfair dismissal
remedy was dismissed.
[105] For these reasons I would allow the appeal and uphold appeal grounds 1(c), 1(d), 2(a),
2(b), 3(a), 4(a), 5(a), 6 and 9.
ORDER
[106] The order of the Full Bench, by majority, is that the appeal is dismissed.
VICE PRESIDENT
Appearances:
54 [2014] FWCFB 6249
OF THE FAIR WORK MISSION THE
[2016] FWCFB 5492
31
Y. Shariff of counsel with S. Millen solicitor for Mt Arthur Coal Pty Ltd.
A. Slevin of counsel with J. Short from the Construction, Forestry, Mining and Energy Union
for J. Goodall.
Hearing details:
2016.
Sydney:
9 August and 9 September.
Final written submissions:
15 September 2016 and 27 September 2016 – Mt Arthur Coal Pty Ltd.
22 September 2016 – J. Goodall.
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