Gelagotis, Michael v Esso Australia Pty Ltd - [2018] FWC 2398

1

Fair Work Act 2009 
s.394 - Applications for unfair dismissal remedies

Mr Michael Gelagotis

v

Esso Australia Pty Ltd
(U2017/11682)

Mr Michael Hatwell

v

Esso Australia Pty Ltd
(U2017/11683)

DEPUTY PRESIDENT COLMAN MELBOURNE, 2 MAY 2018

Applications for unfair dismissal remedies

[1] This decision concerns applications made by Mr Michael Gelagotis and Mr Michael 
Hatwell for unfair dismissal remedies under s.394 of the Fair Work Act 2009 (Act).

[2] Mr Hatwell commenced employment with Esso Australia Pty Ltd (Esso) in January 
2007. He worked as a power and control technician in the electrical maintenance group at the 
company’s Longford site. He is a member of the Communications, Electrical, Electronic, 
Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). From 
early 2014, Mr Hatwell was an elected shop steward. 

[3] On 30 October 2017, Esso summarily terminated Mr Hatwell’s employment. He was 
handed a termination letter which stated that he had engaged in conduct ‘designed to ignore, 
exclude and isolate employees of contractors on site’, and that he had used ‘offensive and 
intimidating language towards and about employees of contractors’. The letter also stated that 
he had been directly involved in a decision to exclude Mr S.P.1 from the lunchroom, and that 
he had said to Mr Travis Flens ‘You are doing every cunt’s job now are you?’, and had called 
him a ‘fucking scab.’2

[4] Mr Gelagotis was employed by Esso as a maintenance technician in January 2014. In 
mid-2016 he was elected a health and safety representative. He is a member of the 

                                               
1 After seeking the views of the parties’ representatives at the hearing, I determined that it was appropriate in this decision to 

use Mr S.P.’s initials, rather than his name.
2 Statement of Michael Hatwell, Exhibit A3 at MH-9

[2018] FWC 2398 [Note: This decision has been quashed - refer to the Full 
Bench decision dated 2 October 2018 [[2018] FWCFB 6092]

DECISION


E AUSTRALIA FairWork Commission




 



[2018] FWC 2398

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Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the 
Australian Manufacturing Workers Union (AMWU). 

[5] On 30 October 2017, Esso summarily terminated Mr Gelagotis’ employment. He too 
was handed a termination letter stating that he had engaged in conduct ‘designed to ignore, 
exclude and isolate employees of contractors on site’. The letter stated that he had initiated 
discussions to have Mr S.P. excluded from the lunchroom. It further stated that he had used 
offensive and intimidating language towards and about employees of contractors.3  

[6] Mr S.P. and Mr Flens are employees of MTCT Services Pty Ltd, commonly referred 
to as ‘UGL’. At Esso’s Longford site, some maintenance work is undertaken directly by Esso 
maintenance employees such as Mr Hatwell and Mr Gelagotis. These employees’
employment is covered by the Esso Gippsland (Longford and Long Island Point) Enterprise 
Agreement 20174 (Onshore Agreement). Other maintenance work at Longford is undertaken 
by employees of contractors. Since 26 June 2017, UGL has been contracted by Esso to 
provide general, mechanical and electrical maintenance services to Esso, both at Longford 
and on its offshore platforms. UGL successfully bid for the relevant contract through a tender 
process initiated by Esso in 2016.  

[7] The employment arrangements that apply at UGL have been the subject of
controversy.  UGL is a wholly owned subsidiary of UGL Operations and Maintenance Pty 
Ltd. Between September 2010 and July 2017, the contract to provide maintenance services to 
Esso was held by a joint venture company known as UGL Kaefer Joint Venture (UGLK). The 
work performed by UGLK’s employees was covered by enterprise agreements that had been 
negotiated with the AMWU, CEPU and the Australian Workers’ Union (AWU).  

[8] In mid-2017, having won the tender for the maintenance contract, UGL made offers of 
employment to former employees of UGLK who had previously been engaged in undertaking 
maintenance work for Esso. The employment of UGL employees is covered by the NM 
Enterprise Agreement 20165 (NM Agreement). The unions are not covered by this agreement. 
It contains conditions that are in various respects less beneficial than those which were 
applicable at UGLK. Since 22 June 2017, the AMWU, CEPU and AWU have maintained a 
protest line outside the Longford site. Those on the protest line have discouraged former 
UGLK employees from accepting offers of employment with UGL. Some former employees 
of UGLK have however chosen to accept such offers. Among them are Mr S.P. and Mr Flens.

[9] Esso’s reasons for dismissing Mr Hatwell and Mr Gelagotis relate generally to certain 
types of conduct that they were said to have engaged in towards employees of contractors. 
But they also relate to the particular events of two days. 

[10] First, on 15 June 2017, there occurred a communications meeting of Esso maintenance 
employees in the lunchroom at Longford. During the meeting, there was a discussion about 
asking Mr S.P. to stop using the Esso employees’ lunchroom. It is not in dispute that Mr 
Gelagotis raised this issue. Why he did so is contested. Although Mr S.P. was an employee of 
UGL, he usually ate his lunch in the lunchroom, and had done so for some years while he was 
employed by UGLK. After the communications meeting, Mr Gelagotis spoke with another 

                                               
3 Statement of Michael Gelagotis, Exhibit A6 at MG-5
4 AE423884
5 AE422305








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Esso employee, Mr Lyndon, about the matter. Mr Lyndon, who was Mr S.P.’s friend, then 
asked Mr S.P. not to use the lunchroom. Esso concluded that Mr Gelagotis instigated Mr 
S.P.’s exclusion from the lunchroom because he had recently accepted employment with 
UGL. It also considered that Mr Hatwell, who chaired the communications meeting, was 
directly involved in the decision to exclude Mr S.P. from the lunchroom for this reason. 

[11] Mr Gelagotis contends that he had legitimate reasons for excluding Mr S.P. from the 
lunchroom, which were unrelated to Mr S.P.’s acceptance of a UGL contract. Mr Hatwell 
contends that he simply chaired the communications meeting, during which a range of matters
were discussed, and that he had no special involvement in or responsibility for excluding Mr 
S.P. from the lunchroom. 

[12] Secondly, on the afternoon of 31 July 2017, there was an encounter between Mr 
Hatwell and Mr Flens in the workplace at Longford. Esso contends that Mr Hatwell 
approached Mr Flens and made the abusive statements referred to above. Mr Hatwell denies 
making these statements. UGL reported the matter to Esso. The company then commenced an 
investigation into Mr Flens’ allegations. 

[13] On 7 August 2017, Mr S.P. attempted to take his own life. He left a note which stated 
that a number of Esso employees, including Mr Hatwell and Mr Gelagotis, had ‘incite(d)
hatred, segregation (and) isolation between Esso workers and contractors’ (‘the note’).6 Esso 
commenced an investigation into Mr S.P.’s allegations. 

[14] As a result of its investigations, Esso dismissed Mr Gelagotis, Mr Hatwell, and two 
other employees who were named in Mr S.P.’s note. It also issued final warnings to three 
other employees who were referred to elsewhere in the note.

The proceedings and the evidence

[15] The two applications were heard before me over five consecutive days from 29 
January 2018. They were heard together, and evidence in the one was considered to be 
evidence in the other to the extent it was relevant. Thirty-seven witness statements were filed. 
Mr Gelagotis and Mr Hatwell gave evidence on their own behalf. The company led oral 
evidence from Mr Flens however Mr S.P. did not give evidence. He was not available to do 
so, on medical grounds.7 Ms McMillan, Esso’s human resources client contact, and Mr 
Zvirbulis, HR/IR manager for production, interviewed Mr S.P. and his wife (Mrs S.P) about 
the allegations in his note. A transcript of this interview was annexed to Ms McMillan’s 
witness statement.8 Mr S.P.’s wife filed a witness statement, and was to be available for cross-
examination, but ultimately did not attend the proceedings. An affidavit was filed by a 
solicitor from Clayton Utz, Ms Winckworth, attaching the statement of Mrs S.P. Ms 
Winckworth deposed that she had spoken with Mrs S.P. on the telephone, and that Mrs S.P. 
had confirmed that the contents of her statement were correct. 

[16] I make some preliminary remarks about the evidence. 

                                               
6 Witness statement of Melinda McMillan, Exhibit R5 at MM-4
7 Report of Dr Brown, Exhibit R23. This exhibit is subject to a confidentiality order.
8 Witness statement of Melinda McMillan, Exhibit R5 at MM-13








[2018] FWC 2398

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[17] First, there was debate about what use the Commission should make of Esso’s
transcript of interview with Mr S.P. and Mrs S.P, and whether any regard at all should be had 
to Mrs S.P.’s statement. I accepted the affidavit of Ms Winckworth, and the transcript of 
Esso’s interview with Mr S.P. and Mrs S.P., and indicated that I would give consideration to 
the parties’ submissions as to the weight I should accord to them. 

[18] The applicants acknowledged in their closing submissions that the Commission could 
have regard to Esso’s interview with Mr S.P. and Mrs S.P., because of Ms McMillan’s sworn 
evidence about it. They contended however that Mr S.P.’s answers should not be regarded as 
sworn evidence, but rather as untested, and given less weight accordingly. In relation to the 
witness statement provided by Mrs S.P., the applicants contended that she had originally 
made herself available for cross-examination, and then on the day for her to appear in the 
Commission had tendered a medical certificate stating only generally that it would be 
detrimental for her to attend the proceedings. The applicants submitted that, unlike the 
position in relation to Mr S.P., there was no material that explained the basis for the doctor’s 
conclusions, and it was therefore not established that Mrs S.P. was unavailable to give 
evidence. Had the Evidence Act 1995 (Cth) applied, it is doubtful that her statement would 
have been admissible, although there is a basis for a contrary contention in light of the 
evidence of Ms Winckworth.9

[19] Esso relied on the evidence of both Mr S.P. (through the transcript attached to Ms 
McMillan’s statement) and Mrs S.P. (through Mr Winckworth’s affidavit) in relation to the 
allegations that Mr Hatwell and Mr Gelagotis engaged in ‘conduct designed to ignore, 
exclude and isolate employees of contractors on site’, and that they used ‘offensive and 
intimidating language towards and about employees of contractors.’

[20] I have had regard to the evidence of Mr S.P., but have relied on it only to a limited 
extent in making my factual findings. Mr S.P.’s note is clearly relevant, as it prompted one of 
Esso’s investigations. The applicants did not object to the Commission’s use of the existence 
of the note as a relevant fact, but contested the truth of the statements contained in the note. 
However, Mr S.P.’s information is not relevant to Mr Hatwell’s interaction with Mr Flens, or 
to what occurred during the communications meeting on 15 June 2017. As to the evidence of 
Mrs S.P., I have not relied on it in reaching my findings of fact.

[21] The conduct of Mr Hatwell and Mr Gelagotis that I have found below to be 
substantiated is based on the evidence of the applicants, Mr Flens and the other UGL 
witnesses, Esso employees who were present at the communications meeting, and evidence of 
the surrounding circumstances. Where there is a contest on the evidence as between particular 
witnesses (in particular, Mr Hatwell and Mr Flens), I will explain below whose evidence I 
prefer and why. 

[22] Secondly, the applicants objected to certain evidence about the industrial context of 
the present matter. In particular, objections were made to certain paragraphs of Ms 
McMillan’s statement about activities on the protest line outside the Longford site. The 
objections were based principally on relevance. I have received this evidence - ‘admitted’ 
seems inapt to say, in the setting of a tribunal not bound by the rules of evidence under its 
statute. I have done so because I considered it to be relevant. Evidence of circumstances 
surrounding facts at issue can provide a basis for drawing logical inferences. However, I 

                                               
9 See generally sections 63 and 64 of the Evidence Act 1995 (Cth)








[2018] FWC 2398

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emphasise that the applicants were not said to have been involved in the protest line. I note 
also that the applicants elsewhere contended that the broader context was relevant to the 
question of harshness, and that the industrial disputation associated with UGL’s employment 
arrangements was dividing the workplace and had created tension.10

[23] Thirdly, it should be noted that the applicants’ direct evidence has four primary
sources: the answers they provided to Esso during its investigations, the transcript of which 
was put in evidence before the Commission; the applicants’ initial witness statements
prepared for these proceedings; their subsequent ‘reply’ statements; and their oral evidence 
before the Commission. Esso contended that the accounts provided by the applicants were not 
consistent and in various respects dishonest. The applicants rejected this, and contended that 
any differences between the accounts of each of the applicants are explainable, including 
because of the generality of the allegations first put to them by Esso. In the course of setting 
out my factual findings in these reasons, I will address certain inconsistencies in the 
applicants’ evidence, particularly in relation to the evidence of Mr Gelagotis. 

[24] Fourthly, I note more generally that, as an administrative, quasi-judicial tribunal, the 
Commission is required to take into account relevant considerations, and to ignore irrelevant 
considerations.11 Relevant considerations are found in ‘material which tends logically to show 
the existence or non-existence of facts relevant to the issue to be determined.’12 If the material 
has probative value the weight to be attached to it is a matter for the decision-maker. The 
Commission should consider and carefully weigh all relevant material, including 
circumstantial evidence, and where appropriate draw reasonable inferences. 

[25] Finally, the Commission is not bound by the rules of evidence,13 although it tends to 
follow them.14 Hearsay may be relied on if it is shown to be probative of a fact in issue, 
however it would not ordinarily be relied on if the opposing party is denied an opportunity to 
contradict the material by presenting contrary evidence.15 Ultimately, the Commission is 
obliged to perform its functions in a manner that is fair and just.16

Initial matters to be considered

[26] Section 396 of the Act requires that, before considering the merits of an unfair 
dismissal application, the Commission must decide four matters. There is no dispute between 
the parties, and I am satisfied, of the following. First, the two unfair dismissal applications 
were made within the 21 day period required by s.394(2) of the Act. Secondly, Mr Hatwell 
and Mr Gelagotis are persons protected from unfair dismissal, as an enterprise agreement 
applied to their employment at Esso (s.382). Thirdly, the dismissals were clearly not cases of 
genuine redundancy. Finally, no question of compliance with the Small Business Fair 
Dismissal Code arises.

                                               
10 Applicants’ reply submissions dated 19 January 2018, Exhibit A2 at paragraph 19
11 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 - 41 
12 Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666, at 689, per Deane and Evatt JJ
13 Fair Work Act 2009 (Cth), s.591
14 Pearse v Viva Energy [2017] FWCFB 4701 at [14]
15 Enterprise Flexibility Test Case (1995) 59 IR 430, 445
16 Fair Work Act 2009 (Cth), s.577(a) 








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The industrial situation at Longford

[27] These applications concern dismissals for misconduct which occurred in a particular 
industrial context. This context needs to be considered simply in order to understand the 
parties’ competing contentions. The context may also be evidentially relevant, such as for the 
purposes of drawing inferences. At the same time, the applicants rightly contend that the 
focus of the Commission’s consideration of the applications must be on what Mr Gelagotis 
and Mr Hatwell actually did. 

[28] Mindful of this, I proceed briefly to address the broader commercial and industrial 
background, before turning to the particular allegations against the applicants and my 
consideration of whether they are substantiated. In summarising chronologically the industrial 
background, I make brief reference to other significant incidents, as the sequence of events 
will be of relevance. 

[29] In January 2017, Esso awarded a five year contract to UGL to undertake maintenance 
services at Longford. It announced the award of the contract to Esso employees and union 
delegates in February 2017.17 From March to May 2017 there were certain negotiations 
between UGL and the unions for an enterprise agreement to cover the employees who would 
perform the work under the new contract.18 The unions’ position was that the terms and 
conditions of a new enterprise agreement should reflect the conditions previously afforded to 
UGLK employees. 

[30] Esso’s position is that in May 2017, the unions commenced an ‘industrial campaign’
against it and UGL. On 19 May 2017, Mr Mooney, CEPU organiser, sent a text message to a 
UGL employee stating ‘War is coming.’19 The text message contained a hyperlink to an ETU
(CEPU) Facebook post of the same date that shared a Gippsland Times news article entitled 
‘contractor wants to reduce offshore wages’.

[31] On 29 May 2017, the ETU, AMWU and AWU sent a message to members, bearing 
the logos of each union and providing contact information for relevant organisers, stating
(amongst other things):

‘It is the view of all three Unions that NO Member should be accepting the job offer on 
the current terms and conditions that are on offer … 

If you accept these jobs on UGL's MTCT Agreement you are UNDERMINING all the 
hard work the Unions and past Members have worked for. Think of the legacy that you 
are leaving behind … 

If you have signed a contract of employment you should withdraw your agreement to 
sign onto this crap deal and join the fight for a fair deal. If you are still working for 
UGL and you are offered a contract, you should reject it and contact your Union -
don't be a sell out because you will never get back what you have agreed to sell off 
and you will create a precedence (sic) for other workers in the future.’20

                                               
17 PN312 - PN315, PN1374
18 Respondent’s outline of submissions, Exhibit R3, paragraph 5; Statement of Richard Zvirbulis, Exhibit R6, paragraph 11
19 Statement of Greta Marks, Exhibit R21 at GM-6
20 Ibid. 








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[32] In my view it is clear that the unions attempted to discourage UGLK employees from 
accepting UGL’s offers of employment.21 Their position was that no member should accept 
the job offer and that to do so was a ‘sell out’.22

[33] On 9 June 2017, Mr S.P. signed an offer of employment with UGL.23

[34] On 14 June 2017, Mr Matthew McDonald, an Esso maintenance employee and 
AMWU delegate, sent an email concerning the employment arrangements at UGL to Esso 
maintenance and operations employees, including Mr Hatwell and Mr Gelagotis.24 It attached 
clauses from a UGL enterprise agreement for distribution to ‘all offshore Esso employees so 
they understand the position UGL-K employees are in, which will at some point affect all 
Esso Employees.’ The email stated that ‘the three Unions are not letting this slip they have 
got media campaigns well underway and a visual presence will come soon enough’. It further 
stated that the three unions ‘reiterate to all UGL-K members not to sign this crap deal because 
you would be selling 25 years of hard fought conditions down the drain.’

[35] On the following day, 15 June 2017, the communications meeting referred to above
took place, at which there was discussion about asking Mr S.P. not to use the Esso 
employees’ lunchroom. I examine the events of that day further below. 

[36] On 20 June 2017, employees of Esso at Longford stopped work,25 evidently in support 
of a union rally against UGL and Esso that had been organised in Melbourne that day.26

[37] On 21 June 2017, Esso investigated the previous day’s walk off and interviewed 
participants for the purposes of potential disciplinary action. Mr Hatwell lodged a harassment 
complaint against Ms McMillan in respect of her interview with a Mr Alex Loppardi, an Esso 
mechanical fitter. Mr Hatwell claimed that Ms McMillan breached Esso’s harassment policy
during this interview.27 This was the second time Mr Hatwell had initiated a complaint under 
Esso’s harassment policy, the first being in 2015 when Mr Hatwell alleged breaches of the 
policy by the Longford plant manager.28

[38] On 22 June 2017 a protest line appeared near the entrance to the Longford site. Union 
flags were placed along the perimeter of Garretts Road, adjacent to the Longford site.29 A 

                                               
21 See for example Email from Frank Casella dated 14 June 2017, Exhibit R1 pp. 2 - 3; Statement of Travis Flens, Exhibit 

R11 at paragraph 6; Statement of John McShane, Exhibit R18 at paragraph 11. 
22 Statement of Greta Marks, Exhibit R21 at GM-6 (p. 2 of attachment); PN422 - PN439
23 Respondent’s final written submissions dated 12 March 2018 at paragraph 30
24 Email from Frank Casella dated 14 June 2017 and email chain, Exhibit R1
25 PN862 - PN867, PN886; PN1952 - PN1964
26 PN886, PN898
27 PN293 - PN294, PN900 - PN914
28 PN293
29 PN931 - PN935; PN1979 - PN1981; PN4693, PN5120; Witness statement of Natalie Bannan, Exhibit R20 at paragraph 14, 

NB-4, NB-15 (pp.52-53) ; Statement of Travis Flens, Exhibit  R11 at paragraph 11(a), 11(f); Statement of Paul Whykes, 

Exhibit R15 at paragraph 9; Statement of John McShane, Exhibit R18 at paragraph 16








[2018] FWC 2398

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group of people gathered, including former UGLK workers who had not accepted
employment with UGL.30 Officials of the CEPU, AWU and AMWU were also present.31

[39] Photographs produced to the Commission showed the presence of slogans and 
statements such as ‘Stop Esso's UGLy plan’. Such references appeared on union social media 
pages.32 A dedicated Facebook page entitled ‘Esso/Longford UGLy dispute’ was created.33 In 
my view it is clear that the protest line was organised by the unions.34

[40] On the same day that the protest line emerged, Mr Andre Kostelnik, the Longford 
Production Operations Manager, sent an email to all Esso employees and contractors 
concerning Esso’s Harassment Policy. It contained a hyperlink to the full policy, and 
relevantly stated: 

‘We have become aware that a community information line has been formed outside 
Longford Plants … 

We would also like to take this opportunity to remind all employees and contractors of 
the Company’s Harassment in the Workplace Policy. If you observe any behaviour or 
comments that may be considered harassing or intimidating, you are responsible for 
reporting it to your supervisor or HR.’35

[41] UGL’s contract to provide maintenance services to Esso commenced on 26 June 
2017.36 By that time, it was evident which individuals had accepted employment with UGL 
to work at Longford, as they were entering the Longford site. 

[42] On 30 June 2017, Mr Hatwell, Mr Gelagotis and other Esso employees received 
written warnings in respect of their participation in the walk off on 20 June 2017.37 The 
warnings issued to both Mr Hatwell and Mr Gelagotis each contained the following direction: 

‘…It remains a condition of your ongoing employment that you consistently meet the 
Company’s expectations. Failure to comply with these directions and those 
expectations could lead to further disciplinary action, leading up to and including 
termination of employment. In particular, you must comply with the following 
requirements: 
 You must comply with all Company policies, procedures and rules; 
 You must perform your duties in a professional and diligent manner; and 
 You must comply with all reasonable and lawful directions given to you.’

                                               
30 Statement of Frank Tabone, Exhibit R10 at paragraph 10; Statement of Clint Henness, Exhibit R13 at paragraph 8; 

Statement of Natalie Bannan, Exhibit R20 at NB-15, PN970
31 PN936 - PN937; Statement of Natalie Bannan, Exhibit R20 at paragraphs 19-20, NB-5
32 Statement of Greta Marks, Exhibit R21 at GM-2 through to GM-5; GM-8
33 Statement of Greta Marks, Exhibit R21 at GM-1
34 PN938 - PN939, PN965
35 Statement of Kirsteen Butler, Exhibit R8 at KB-22  
36 Statement of Frank Tabone, Exhibit R10 at paragraph 5
37 Statement of Kirsteen Butler, Exhibit R8; at KB-3 and PN928 - PN930 re Michael Hatwell; at KB-9 and PN1972 re 

Michael Gelagotis; and at KB-5 and KB-7 re other Esso employees. See also paragraphs 13, 15, 17, 19








[2018] FWC 2398

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[43] On 3 July 2017 a very large inflatable rat appeared outside the entrance to the 
Longford site.38 A sign appeared stating ‘Don't be Scabby the Rat.’ Another sign listed the 
names of those who had accepted UGL offers of employment.39 Among those named were Mr 
S.P.40 and Mr Flens,41 as well as Mr Henness, UGL’s mechanical supervisor, and Mr Little, a 
UGL mechanical fitter.42 Photographs of the above were tendered in evidence before the 
Commission.43

[44] There was evidence that some people on the protest line had shouted at UGL 
employees who drove through on their way to or from work,44 using language such as ‘dick 
head’, ‘scab,’ ‘dog’, ‘grub’, ‘scum’ or ‘coward’.45 There was evidence that some had hit cars 
with placards46 and approached cars with UGL employees inside, pointing at them and calling 
out ‘scab’.47 Mr Henness gave evidence that he was stopped in a line of traffic held up by the 
picket line and approached by two people who opened his car door and said ‘I know where 
you live and I know where your family are, we know what you’ve been doing and we’ll be 
watching you’.48 I reiterate that the applicants were not said to have been involved in the 
protest line.

[45] On 21 July 2017, the Federal Court issued orders against the three unions and three 
officials of those unions, requiring them to remove the inflatable rat and the signs naming the
persons who had accepted employment with UGL.49 The orders also prohibited the unions 
from threatening, obstructing, harassing or intimidating UGL employees. 

[46] Esso led evidence of various instances of inappropriate behaviour about or towards 
UGL employees since 2017 (aside from the conduct of the applicants that is at issue in these 
proceedings). Esso believes, but cannot prove, that Esso employees have been involved in the 
following: unexplained blocking out of UGL employees’ communication over site radios;50

inappropriate graffiti and signage appearing in the workplace referring to UGL employees, 

                                               
38 Statement of Natalie Bannan, Exhibit R20 at paragraph 15
39 Photograph showing a sign apparently outside the protest line, Exhibit R9; Statement of Travis Flens, Exhibit R11 at 

paragraphs 15(a) - 15(b), TF-3, TF-4; Statement of Natalie Bannan, Exhibit R20, NB-15 (p. 55); Statement of Greta 

Marks, Exhibit R21, GM-7 (pp. 1, 3, 5, 8, 9)
40 Photograph showing a sign apparently outside the protest line, Exhibit R9; Statement of John McShane, Exhibit R18 at 

paragraph 22
41 Exhibit R9, ibid. Statement of John McShane, Exhibit R18 at paragraph 20
42 Exhibit R9, ibid. Statement of John McShane, Exhibit R18 at paragraph 22; PN1185, PN1190 - PN1191  
43 Statement of Natalie Bannan, Exhibit R20 at paragraph 15, NB-2, NB-15 (p. 55); Statement of Greta Marks, Exhibit R21, 

GM-7 (pp. 4, 6, 7, 8), GM-8 (pp. 46, 54, 55)
44 Statement of Melinda McMillan, Exhibit R5 at paragraph 6(g); Statement of Clint Henness, Exhibit R13 at paragraph 9; 

Statement of Travis Flens, Exhibit R11 at paragraph 9
45 Statement of Travis Flens, Exhibit R11 at paragraph 9; Statement of Frank Tabone, Exhibit R10 at paragraph 11; Statement 

of Rod Little, Exhibit R12  at paragraph 10;  Statement of John McShane, Exhibit R18  at paragraphs 17-19; Statement of 

Natalie Bannan, Exhibit R20 at paragraph 30
46 Statement of Frank Tabone, Exhibit R10 at paragraph 11
47 Statement of John McShane, Exhibit R18 at paragraph 18
48 Statement of Clint Henness, Exhibit R13 at paragraph 9
49 Statement of Richard Zvirbulis, Exhibit R6 at paragraph 14, RZ-2; Statement of Natalie Bannan, Exhibit R20 at paragraph 

16, NB-3
50 Statement of Kym Smith, Exhibit R7 at paragraphs 62-65; Statement of Travis Flens, Exhibit R11 at paragraphs 17-19; 

Statement of Rod Little, Exhibit R12 at paragraph 7; Statement of Clint Henness, Exhibit R13 at paragraph 13; Statement 

of Paul Whykes, Exhibit R15 at paragraphs 10-12








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including pictures of the inflatable rat;51 and a painted sign appearing with the words 
‘Humans Only, No Scabs’.52 However, these matters have not been explained. It is not 
necessary or appropriate to delve into these various allegations. The focus of these 
proceedings must remain on the conduct of the applicants, and so much of the surrounding 
circumstance as can be safely proved. 

[47] Esso contended that Mr Gelagotis and Mr Hatwell were part of a union ‘campaign’ 
against UGL and employees who accepted contracts with it. The applicants contended that it 
has not been established that there was such a campaign or that they had any part in it. In my 
view, it is not necessary for me to determine whether the union’s position and conduct in 
relation to the UGL employment arrangements constituted a ‘campaign’. The evidence of the 
applicants and certain other witnesses addresses their understanding of the unions’ position; 
this can speak for itself, without the overlay of any characterisation. I consider this evidence 
below. I note that the applicants’ submissions summarise the broader context as follows: UGL
invited the former UGLK workforce to re-apply for their former jobs on inferior terms and 
conditions, including significantly lower wages; and that in response, an ongoing protest 
camp was established outside the Longford site from late June 2017.53

[48] It has not been alleged that either Mr Hatwell or Mr Gelagotis had any responsibility 
for the behaviour of any person on the protest line or the conduct of the protest line more 
generally. The activities on the protest line are relevant to the context in which the allegations 
against the applicants were made. Whether Mr Hatwell and Mr Gelagotis supported the 
position of the protestors and the unions is a question of relevance. However, their conduct is 
not to be judged by the behaviour of others. 

[49] Finally, it is uncontroversial that in the months of June and July 2017, the working
environment between Esso maintenance employees and contractors at Longford was tense, 
and that this tension was related to the industrial disputation between UGL and the former 
employees of UGLK and their unions.

The investigations

[50] On Monday 7 August 2017, UGL’s site superintendent, Mr Frank Tabone, reported to 
Esso Mr Flens’ allegation about his encounter with Mr Hatwell on 31 July 2017, during which 
Mr Flens claimed that Mr Hatwell had called him a ‘fucking scab.’54

[51] Later that day, UGL made a further report to Esso, stating that another UGL 
employee, Mr S.P., had attempted to take his own life.  On 8 August 2017, Esso was provided 
with a copy of Mr S.P.’s note, in which he stated that certain Esso employees, including the 
applicants, had ‘incite(d) hatred, segregation, isolation between Esso workers and 
contractors’.55

[52] Ms Kirsteen Butler, Esso’s human resources manager, gave evidence that on 8 August 
2017 she commenced an investigation in relation to the allegations of Mr Flens. The same 

                                               
51 Statement of Travis Flens, Exhibit R11 at paragraph 20
52 Statement of Frank Tabone, Exhibit R10 at paragraph 20, FT-2
53 Applicants’ final written submissions dated 27 February 2018 at paragraph 15
54 Statement of Kirsteen Butler, Exhibit R8 at paragraph 7; Statement of Frank Tabone, Exhibit R10 at paragraph 27
55 Statement of Kirsteen Butler, Exhibit R8 at paragraph 8; Statement of Kym Smith, Exhibit R7 at  paragraph 38








[2018] FWC 2398

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day, Mr Flens was interviewed by Ms McMillan and Ms Smith. The interview was 
transcribed.56 Ms Butler later directed Ms McMillan and Mr Zvirbulus to investigate the 
allegations in Mr S.P.’s note. Ms Butler ultimately merged the two investigations, as both 
concerned allegations of mistreatment of UGL employees by Esso employees.57

[53] Esso was not immediately able to speak to Mr S.P. concerning the allegations in his 
note, due to his medical condition. Ms Butler gave evidence that she decided that the 
appropriate course of action was to suspend the seven employees referred to in Mr S.P.’s note 
on full pay until Esso could better understand what may have occurred.58

[54] On 9 August 2017, Mr Hatwell, Mr Gelagotis and four of the other five Esso 
employees referred to in Mr S.P.’s note were suspended. The other named employee was 
suspended on 10 August 2017. Mr Hatwell and Mr Gelagotis received letters from Mr David 
Anderson, the plant manager, stating that they were suspended while the company 
investigated allegations concerning ‘possible harassment of UGL contractors’.59 The letters 
did not refer to Mr S.P., Mr Flens, or any particulars of the alleged harassment. Mr Hatwell
gave evidence that after he was stood down, he received some emails from Esso concerning 
allegations made by Mr Flens however he did not know what those allegations were.

[55] On 10 August 2017, Mr Frank Casella, an Esso operator, sent a text, apparently 
mistakenly, to Mr Mick Triantafyllou, the Esso safety coordinator, saying:

‘The most important thing here is that no one admits to anything or signs any 
statements all there (sic) evidence is here say (sic) and not admissible. You’re only 
convicted on the evidence you give.’60

[56] According to Mr Triantafyllou, on 14 August 2017 Mr Casella said to him that the 
message was sent by mistake, that he should delete it and that it ‘had nothing to do with the 
current situation of bullying.’61 I note that the applicants objected to a paragraph in Ms 
Smith’s statement referring to this matter; however Mr Triantafyllou gave direct evidence of it 
through his statement, and he was not required for cross-examination. I consider it to be of 
some relevance to the industrial context, although my findings do not rely on it. 

[57] On 15 August 2017, Mr Hatwell was interviewed by Ms Smith and Mr Peter 
McMillan from Esso in relation to the allegations made by Mr Flens. Mr Hatwell was 
accompanied by Mr Mooney, ETU Organiser. The interviewed was transcribed.62

[58] On 30 August 2017, Mr Hatwell attended a second interview with Ms McMillan and 
Mr Zvirbulus, accompanied by Ms Weber, an ETU lawyer. Before the start of the interview, 
Mr Hatwell was given a document headed ‘summary of issues’, which referred to ‘allegations 
that [Mr S.P], UGL contractor, was harassed, bullied and intimidated by Longford Plant 
employees.’ It stated that the subject of investigation included the ‘manner of interactions 

                                               
56 Statement of Travis Flens, Exhibit R11 at paragraph 33; TF-5
57 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 52-56
58 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 57-59
59 Statement of Michael Hatwell, Exhibit A3, MH-1; Statement of Michael Gelagotis, Exhibit A6, MG-1
60 Statement of Mick Triantafyllou, Exhibit R17 at paragraph 21
61 Statement of Mick Triantafyllou, Exhibit R17 at paragraph 25
62 Statement of Michael Hatwell, Exhibit A3, MH-2








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between Esso employees and [Mr S.P.] and [Mrs S.P]. before and after the UGLK to UGL 
contract change over; allegations of [Mr S.P.] being excluded from the maintenance 
lunchroom by Esso employees; conduct of Esso employees when interacting with [Mr S.P.] at 
the tool store; and Esso employees engaging in conversations about ‘scabs’, rats’, ‘dogs’ or 
similar terms’.63 The interview was transcribed.64

[59] On 31 August 2017, Mr Gelagotis was interviewed by Mr Zvirbulus and Ms McMillan 
about the allegations raised by Mr S.P. Mr Gelagotis was accompanied by Mr Barry Terzic 
from the AMWU. The interview was transcribed.65

[60] On 12 September 2017, Mr S.P. and Mrs S.P. were interviewed by Ms McMillan and 
Mr Zvirbulus. As noted earlier, that interview was also transcribed.66 Mr S.P. and Mrs S.P. 
provided certain additional details of the allegations raised in Mr S.P.’s note. I address some 
of this evidence further below. 

[61] From August to October 2017, Mr Zvirbulus and Ms McMillan conducted some 24 
interviews, including with the other Esso employees named in Mr S.P.’s note, in relation to 
the allegations raised by Mr S.P.67

[62] On 17 October 2017, Mr Hatwell and Mr Gelagotis each received a letter from Ms 
Butler, setting out formal allegations to which they were asked to respond.68 The letter to Mr 
Hatwell stated:

‘1. You were involved in conduct designed to ignore, exclude and isolate employees of 
contractors on site. In particular, you:

a) gave contractors the ‘cold shoulder’ or refused to make eye contact with 
them; and

b) were involved in the making of a decision to exclude [Mr S.P.] from the 
lunch room.

2. You made harassing, intimidating or bullying remarks to employees of contractors. 
In particular you:

a) made intimidating and bullying remarks to Travis Flens on 31 July 2017 in 
relation to working on a rostered day off (RDO); and

b) aggressively quizzed Rod Little about his working conditions.

3. You used offensive and intimidating language towards employees of contractors. In 
particular on 31 July 2017 you called Travis Flens a ‘fucking scab’, a ‘dog’ a ‘grub’ 
and a ‘scabby contractor’.’69

                                               
63 Statement of Michael Hatwell, Exhibit A3, MH-3
64 Statement of Michael Hatwell, Exhibit A3, MH-4
65 Statement of Michael Gelagotis, Exhibit A6, MG-2
66 Statement of Melinda McMillan, Exhibit R5 at paragraph 28, MM-13
67 Statement of Melinda McMillan, Exhibit R5 at paragraphs 19-22
68 Statement of Michael Hatwell, Exhibit A3, MH-5; Statement of Michael Gelagotis, Exhibit A6, MG-3








[2018] FWC 2398

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[63] The letter to Mr Gelagotis put to him the following allegations:

‘1. You were involved in conduct designed to ignore, exclude and isolate employees of 
contractors on site. In particular, you:

a) ignored employees of contractors and made comments in words to the 
effect of ‘you'll probably find that people around here won't talk to you’
and ‘no one's going to talk to you like we're not going to talk to [Mr 
S.P.’; and

b) initiated the making of a decision to exclude [Mr S.P.] from the lunch 
room.

2. You used offensive and intimidating language towards and about employees of 
contractors. In particular, you used the words ‘scab’, ‘scum’, ‘dog’ and ‘grub’.’70

[64] The letters to both men sought from them written responses to the allegations. On 20 
October 2017, the AMWU sent a response to Esso on behalf of Mr Gelagotis, denying the 
allegations.71 Mr Hatwell responded by letter dated 24 October 2017, denying the allegations 
against him.72

[65] On 30 October 2017, Mr Hatwell and Mr Gelagotis were handed letters of termination. 
The letter to Mr Hatwell stated:

‘The Company's investigation has concluded that your behaviour and conduct was not 
acceptable, and contributed to creating a hostile & intimidating workplace, in breach 
of the Company's Harassment in the Workplace Policy.

Your behaviour included involvement in conduct designed to ignore, exclude and 
isolate employees of contractors on site, and use of offensive and intimidating 
language towards and about employees of contractors. In particular the Company 
found that you were directly involved in the decision to exclude [Mr S.P.] from the 
lunchroom and that on 31 July 2017 you said to Travis Flens ‘You're doing every 
cunt's job now are you?’ and ‘You're working your RDO today, oh that's right, you 
fucking traded it off, you don't have an RDO, you're a fucking scab.’73

[66] The letter to Mr Gelagotis stated:

‘The Company's investigation has concluded that your behaviour and conduct was not 
acceptable, and contributed to creating a hostile & intimidating workplace, in breach 
of the Company's Harassment in the Workplace Policy.

                                                                                                                                                  
69 Statement of Michael Hatwell, Exhibit A3, MH-5
70 Statement of Michael Gelagotis, Exhibit A6, MG-3
71 Statement of Michael Gelagotis, Exhibit A6, MG-4
72 Statement of Michael Hatwell, Exhibit A3, MH-8
73 Statement of Michael Hatwell, Exhibit A3, MH-9








[2018] FWC 2398

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Your behaviour included involvement in conduct designed to ignore, exclude and 
isolate employees of contractors on site, including by initiating discussions with Mick 
Hatwell and Shane Bennett seeking to have [Mr S.P.] excluded from the lunchroom, 
and the use of offensive and intimidating language towards and about employees of 
contractors.’74

A valid reason and the standard of proof

[67] Section 387(a) of the Act requires the Commission, in considering whether a dismissal 
was harsh, unjust or unreasonable, to take into account whether there was a valid reason for 
the dismissal related to the person’s capacity or conduct. The principles that are relevant to 
the consideration of this concept are well-established. A valid reason is one that is ‘sound, 
defensible and well-founded.’75 The Commission does not stand in the shoes of the employer 
and determine what the Commission would do if it had been in its position.76 The question the 
Commission must address is whether there was a valid reason, in the sense both that it was a 
good reason and a substantiated reason.

[68] In cases relating to alleged misconduct, the Commission must make a finding on the 
evidence provided as to whether, on the balance of probabilities, the conduct occurred.77 It is 
not enough for an employer to establish that it had a reasonable belief that the termination was 
for a valid reason.78

[69] Where allegations of misconduct are made, the standard of proof in relation to whether 
the alleged conduct occurred is the balance of probabilities. However, as the High Court noted 
in Briginshaw,79 the nature of the relevant issue necessarily affects the ‘process by which 
reasonable satisfaction is attained’80 and such satisfaction ‘should not be produced by inexact 
proofs, indefinite testimony, or indirect inferences’81 or ‘circumstances pointing with a 
wavering finger to an affirmative conclusion’.82 The application of the Briginshaw standard 
means that the Commission should not lightly make a finding that an employee engaged in 
the misconduct alleged.83

[70] The rule in Briginshaw has elsewhere been described as reflecting a conventional 
presumption that members of society do not ordinarily engage in fraudulent or criminal 
behaviour.84 In Greyhound Racing Authority, Santow JA noted: 

‘… The notion of “inexact proof, and indefinite testimony or indirect inferences” 
needs to be translated to a comfortable level of satisfaction, fairly and properly 

                                               
74 Statement of Michael Gelagotis, Exhibit A6, MG-5
75 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
76 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
77 Edwards v Giudice (1999) 94 FCR 561, at 564; King v Freshmore (Vic) Pty Ltd , AIRCFB, Ross VP, Williams SDP, 

Hingley C, 17 March 2000, Print S4213 [24].
78 Ibid
79 Briginshaw v Briginshaw (1938) 60 CLR 336
80 Ibid at 363
81 Ibid per Dixon J at 362
82 Ibid per Rich J at 350
83 Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J
84 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450






http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/King%20v%20Freshmore%20(Vic)%20Pty%20Ltd%20-%20Print%20S4213%20-%20highlighted.pdf
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf


[2018] FWC 2398

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arrived at, commensurate with the gravity of the charge, achieved in accordance with 
fair processes appropriate to and adopted by [a Tribunal]’.85

[71] The ‘level of comfort’ referred to means that the finder of fact must ‘feel an actual 
persuasion of the occurrence or existence of the fact in issue’; the ‘mere mechanical 
comparison of probabilities independent of a reasonable satisfaction will not justify a finding
of fact.’86

[72] Although there was broad agreement about the principles applicable to the standard of 
proof and evidence, there was some disagreement as to how these principles applied in the 
present case. Esso contended that here it sought to prove that the applicants’ conduct had 
breached its policies: there is no question of fraudulent or criminal conduct. It contended that, 
if allegations attracting the Briginshaw standard were placed on a spectrum, this case would 
be set at a ‘low level’.87

[73] The applicants submitted that they are accused of serious misconduct, and that the 
courts have recognised that employees enjoy the presumption that ordinarily employees do 
not commit serious misconduct.88 They say that this presumption is not lightly rebutted. The 
applicants, like Esso, submitted that the evidence must actually persuade the Commission that 
the alleged conduct occurred, but contended that the alleged conduct is serious, not a mere 
breach of policy. 

[74] In considering whether there is a valid reason for termination, it is not ordinarily 
necessary for the Commission to determine whether the conduct was sufficiently serious to 
constitute serious misconduct. In the present matter, there is a question about whether, if the 
conduct fell short of serious misconduct, the company was required to apply the procedure in 
clause 22 of the Onshore Agreement, and how this affects the fairness or otherwise of the
dismissals. I deal with this further below. 

[75] I agree with the applicants’ contention that they have been accused of serious 
misbehaviour, and that this affects the application of Briginshaw. Irrespective of whether their 
behaviour constituted serious misconduct, the applicants were summarily dismissed in 
connection with serious allegations concerning mistreatment of employees of contractors on 
site. I do not accept Esso’s contention that the present matters warrant the application of a 
‘low level’ on the Briginshaw ‘spectrum’. Of course, this does not mean that Esso carries a 
higher or criminal standard of proof. 

[76] I note that the Act requires me to consider whether in each of these two matters there 
was a valid reason for dismissal. Where several reasons for termination are invoked, it is not 
necessarily the case that all must be substantiated. Further, it is well-established that a valid 
reason need not necessarily be the one relied upon by the employer. Esso has invoked several 
valid reasons connected to the conduct of each of Mr Hatwell and Mr Gelagotis. 
                                               
85 Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388, [35]; approved in Karakatsanis v Racing Victoria Ltd 

(2013) 306 ALR 125 at [35] - [37] 
86 NOM v Director of Public Prosecutions (2012) 38 VR 618, [124]
87 Respondent’s final written submissions dated 12 March 2018 at paragraph 96
88 See also Dixon J in Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635. At page 644, his 

Honour said: “Again, it is a general principle that absence of default or wrongdoing is presumed and proof is required 

when its absence is made a qualification of a right. It is in accordance with principle to regard fault as a particular 

exception defeating the right only when alleged and proved.”  








[2018] FWC 2398

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I shall now examine them to determine whether I am actually persuaded that the applicants 
committed some or all of the relevant conduct, and whether any such conduct constitutes a 
valid reason.

Was there a valid reason for Mr Hatwell’s dismissal?

[77] The termination letter given to Mr Hatwell on 30 October 2017 stated that Esso’s 
investigations had concluded that his behaviour and conduct was not acceptable and 
contributed to creating a hostile and intimidating working environment, in breach of the 
Company’s Harassment in the Workplace Policy. 

[78] In their final written submissions, Mr Hatwell and Esso each addressed the reasons for 
dismissal set out in the termination letter (see [65] above), but in different ways, apparently 
reflecting different interpretations of it. Esso addressed two reasons for Mr Hatwell’s 
dismissal, which were stated generally and then particularised in the letter as follows: that he
was directly involved in the decision to exclude Mr S.P. from the lunchroom, and that he 
abused Mr Flens in the manner alleged.89

[79] Mr Hatwell’s submissions understand the reasons for dismissal to be fourfold. In his 
final submissions, Mr Hatwell addresses as a separate reason for dismissal ‘conduct designed 
to ignore, exclude and isolate employees of contractors’. He submits that this ‘generalised and 
ambiguous statement’ did not reflect specific conclusions about discrete acts of alleged 
misconduct contained in the allegations letter.90 The termination letter also refers generally to 
Mr Hatwell using offensive language towards and about employees of contractors. I agree 
with Mr Hatwell that the termination letter can be read as identifying as reasons for dismissal 
conduct of a general kind, going beyond the particulars concerning the incident with Mr Flens 
and the exclusion of Mr S.P from the lunchroom. This general conduct was not the focus of 
the proceedings, but I shall deal with it briefly. 

[80] In its final submissions Esso did not appear to press any contention that Mr Hatwell 
engaged in conduct designed to ignore, exclude and isolate employees of contractors, other 
than in relation to Mr S.P. I note that Mr Henness had said in his statement that on 31 July 
2017, Mr Hatwell did not acknowledge or make eye contact with him. However, this is one
allegation of conduct on a single day, and in my view there is nothing to suggest that Mr 
Hatwell would ordinarily have engaged with Mr Henness. 

[81] To the extent that Esso maintained any broader allegation that Mr Hatwell ignored or 
excluded, or gave the ‘cold shoulder’ to Mr Henness or contractors more generally, I find it 
unsubstantiated. 

[82] As to the proposition that Mr Hatwell ignored Mr S.P., the reliable evidence is scant. 
During his interview with Ms McMillan and Mr Zvirbulis, Mr S.P. said, in response to a 
prompt from his wife as to whether Mr Hatwell was dropping his head, ‘Hats was yeah, he 
wouldn’t even look at me, yeah.’91 This is of course a very general allegation. It is not known 
how often the conduct is said to have occurred, or what the circumstances of the various 
occasions are said to have been. Did Mr S.P. claim that Mr Hatwell would walk right past him 

                                               
89 Respondent’s final written submissions dated 12 March 2018 at paragraphs 115 and following
90 Applicants’ final written submissions dated 27 February 2018 at paragraph 52
91 Statement of Melinda McMillan, Exhibit R5 at MM-13 (p.16)








[2018] FWC 2398

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and look away; or speak to him in the tool shed where he worked but not look at him while 
doing so? Or that Mr Hatwell just avoided him? It is not known whether Mr S.P.’s statement 
is a reflection of perception or fact. Nor is it possible, assuming it were to be a fact, to assess 
how serious the conduct was. 

[83] Against this the Commission has heard Mr Hatwell’s sworn evidence. He explained in 
his second witness statement that he had very little interaction with Mr S.P. He denied 
deliberately dropping his head or avoiding eye contact with Mr S.P.92 He stated that he had no 
idea how Mr S.P. could believe that he had done so.93

[84] In my opinion, the proposition that Mr Hatwell ignored Mr S.P. is not substantiated. 

Was Mr Hatwell directly involved in a decision to exclude Mr S.P. from the lunchroom? 

[85] Esso contends that Mr Hatwell was directly involved in a decision to exclude Mr S.P.
from the Esso maintenance lunchroom, and that this constitutes a valid reason for his 
termination.94

[86] It is necessary to examine the evidence of the circumstances surrounding Mr S.P. 
being asked not to use the lunchroom. It was common ground that on 15 June 2017 there was 
a communications meeting with Esso maintenance employees involving some 40 to 50 
employees, and that Mr Hatwell was the chair of the meeting. Mr Hatwell’s evidence was that 
the purpose of the meeting was to provide Esso employees with feedback on recent delegates’ 
meetings, as well as an update on Federal Court proceedings.95

[87] It is also uncontested that during the communications meeting, the situation of Mr S.P.
was raised. Mr Hatwell gave evidence under cross-examination that he understood the 
question at issue to be whether Mr S.P. should be excluded from the Esso maintenance 
lunchroom.96 It will be recalled that Mr S.P. had signed a contract with UGL six days earlier.
Mr Hatwell and Mr Gelagotis said that by the time of the communications meeting, they knew 
that Mr S.P. had accepted an employment offer with UGL (although in cross-examination Mr 
Hatwell said he did not officially know this until 23 June 2017).97

[88] It will also be recalled that the communications meeting occurred one day after Mr
McDonald sent an email to Esso maintenance union members stating that the three unions 
‘reiterate to all UGL-K members not to sign this crap deal because you would be selling 25 
years of hard fought conditions down the drain.’98 Mr McDonald attended the 
communications meeting and took brief notes of topics discussed. His notes record one topic 
of discussion being ‘UGL feedback’.99

                                               
92 Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 49-57
93 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 56
94 Respondent’s final written submissions dated 12 March 2018 at paragraph 124
95 Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 58-59
96 PN820
97 For Michael Hatwell, see PN478-PN482. Note in his second statement Mr Hatwell says he did not know Mr S.P. had 

signed a contract with UGL ‘until 15 June 2017’; but in cross-examination, he says he did not know ‘officially’ until 23 

June 2017. For Michael Gelagotis, see PN1475-PN1479
98 Email from Frank Casella dated 14 June 2017 and email chain, Exhibit R1 p.3
99 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10








[2018] FWC 2398

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[89] Mr Hatwell was asked in cross-examination about this reference in Mr McDonald’s 
notes. He said that there had been discussion about the fact that no agreement had been 
reached between the unions and UGL and that the negotiations had not progressed.100 Another 
issue recorded in Mr McDonald’s notes was ‘Issue raised, contractors in lunchroom, 
comments around what does the sign say on the door’.101

[90] It is not contested that Mr Gelagotis proposed that S.P. not be allowed to use the Esso 
employees’ lunchroom. Precisely what Mr Gelagotis said, and why he said it, is contested. As 
I discuss further below, Mr Gelagotis gave evidence to the Commission that he had a number 
of reasons for raising this issue at the communications meeting. He stated that he believed that 
all contractors should be asked not to use the lunchroom; and that, as two former apprentices 
had been asked to leave earlier in the year, it would be fair to ask Mr S.P. to leave also. His 
evidence was that the lunchroom was for Esso maintenance workers to discuss work and 
industrial matters. And he gave evidence that he was concerned about allegedly threatening 
statements that Mr S.P. had made, and that he did not want something bad to happen. Mr 
Gelagotis told the Commission that during the communications meeting, he raised concerns 
about the risk of violence if Mr S.P. continued to use the lunchroom. I return to these 
explanations further below in considering whether there was a valid reason for Mr Gelagotis’ 
dismissal. 

[91] When Mr Gelagotis was first interviewed by Esso about the communications meeting, 
he said that he had made a comment about Mr S.P.’s presence in the lunchroom, and that, 
given the two apprentice–contractors had been asked to leave earlier in the year, ‘if the shoe 
fits for one it should fit for all’. Mr Gelagotis said in the interview that his comment was 
directed at all contractors, although there do not appear to have been other contractors using 
the lunchroom at that time. Of relevance to the position of Mr Hatwell was that Mr Gelagotis 
told the Esso representatives in his first interview that there had been a ‘motion’ (‘my 
motion’) in relation to this matter,102 and that there was ‘something granted’.103 This 
suggested to Esso that a decision was taken at the meeting that Mr S.P. should be excluded 
from the lunchroom. For Esso, this had particular implications for the culpability of Mr 
Hatwell, given his role as chair of the meeting. 

[92] When Mr Hatwell was interviewed by Esso about the communications meeting, he 
said that Mr Gelagotis raised the issue concerning Mr S.P.’s presence in the lunchroom, and 
that he understood that someone had later told Mr Robert Lyndon about the matter, who had 
in turn asked Mr S.P. not to use the lunchroom. This too will be discussed further below. 

[93] It is clear that there was a discussion at the meeting about the issue raised by Mr 
Gelagotis. It lasted for 5 to 10 minutes.104 Mr Hatwell stated that neither he nor the broader 
group made any decision about Mr S.P.’s presence in the lunchroom.105 He stated that usually,
if a decision is to be made, a vote occurs to ensure that members support it; however on the 
question raised by Mr Gelagotis, there was no vote. He said that he had no further discussions 

                                               
100 PN503
101 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10
102 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.13)
103 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.12)
104 PN2950
105 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 65








[2018] FWC 2398

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with anybody about Mr S.P. or the lunchroom until after he was suspended on 9 August 2017. 
Mr Hatwell maintained that the role he played at the communications meeting was simply to 
chair it, as the ETU delegate.106

[94] In cross-examination Mr Hatwell said as follows:

“Mr Gelagotis has got up and said something?---Yes.

Possibly others, we don't know. They've said, "We've got a concern about Mr [S.P.] 
being in the lunch room". What happened then?---There was a general concern and, 
you know, to be honest, Mick [Gelagotis] didn't really talk directly about anyone, so it 
was – but, no, he was - - -

Sorry, let's work through that. There was a general concern from Mick [Gelagotis]; a 
general concern from Mick?---About UGL contractors in our lunch room.

You see, Mr – that's - - -?---I know that's not what my statement says, but that was 
really what it was about, and my understanding of that later on was it.

That was really what it was about. It was really about excluding UGL contractors, 
wasn't it?---Yes.”107

[95] According to Mr Small’s evidence, Mr Hatwell had called for other agenda items and 
that Mr Gelagotis then raised an issue and there was group discussion ‘about [Mr S.P.] being 
in the lunchroom’.108 Mr Small denied that Mr Hatwell was controlling the conversation.109

He said that Mr Hatwell invited others to make a contribution to what had been raised by Mr 
Gelagotis.110 Mr Lyndon also denied that Mr Hatwell, as chair, controlled the meeting.111 Mr 
Hatwell’s description of his role was that he was providing feedback, rather than raising
issues.112

[96] It was put to Mr Hatwell that he knew, as chair of the meeting, that after Mr Gelagotis 
had raised the issue of Mr S.P.’s use of the lunchroom, the next step would be for somebody 
to tell Mr S.P. that he was excluded from the lunchroom. Mr Hatwell denied this, and said 
that no decision was made at the meeting.113 The exchange extracted above continued:

“When you say there was no decision made, what I suggest to you is that there was a 
discussion and it was clear, I suggest, that your position was that delegates had raised 
something, it sounded fair enough. It could go off and be worked out outside the 
meeting?---I wasn't opposed to that. 

No, you weren't opposed to it?---I wasn't. I didn't - - -

                                               
106 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 66
107 PN654-PN658
108 PN2960
109 PN2956
110 PN2971
111 PN2443
112 PN522
113 PN660








[2018] FWC 2398

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We've got there. You weren't opposed to it and you made that crystal clear to the 
meeting, didn't you?---No. 

Why have you just told the Commission that you weren't opposed to it? You said 
nothing?---I wasn't opposed to it. I didn't know all the information so I wasn't going to 
act on it. I didn't ask people to take a vote on whether that should be the case, which 
was what we would normally do if we were going to make a decision like that. But I 
wasn't personally opposed to it. I didn't eat my lunch there. To be honest with you I 
didn't – it wasn't a big deal to me whether he was in the lunch room or not. It was a 
concern by other people, Mick [Gelagotis], and so I wasn't opposed to it because I 
didn't eat my lunch there. 

You let - - -?---So I left that meeting with no decision made and no idea what had 
happened afterwards.”114

[97] Esso contended that regardless of the formality or otherwise of the decision-making 
process, the Commission ought to conclude that Mr Hatwell was actively involved in a 
decision or process to ‘grant’ (to use Mr Gelagotis’ word) the exclusion of Mr S.P. from the 
lunchroom. Mr Hatwell was the ETU delegate. He chaired the meeting. For Esso, he must 
bear some responsibility for the conduct of the meeting and the things that occur as a result of 
the meeting. Esso submitted that, at the least, the process followed in the meeting led 
inevitably to steps which meant Mr S.P. was to be excluded from the lunchroom, and that Mr 
Hatwell agreed with the proposed course of action and did nothing to stop this.

[98] However, in my view, the evidence does not establish that Mr Hatwell played a 
significant role in excluding Mr S.P. from the lunchroom. He chaired the meeting and was 
involved in the discussion of this issue. He understood the proposal to be that UGL 
contractors should be asked not to use the lunchroom. The only contractor identified at that 
point was Mr S.P. Mr Hatwell was not opposed to the proposal. However he did not have all 
the information and so ‘wasn’t going to act on it.’115 I accept this evidence.

[99] Mr Hatwell could perhaps have used his authority and influence (the extent of which is 
not established) to prevent further discussion of Mr S.P.’s exclusion from the lunchroom, but 
did not do so. Whether he should have done so brings into consideration the question of the 
legitimacy of the request to ask Mr S.P. not to use the lunchroom, which I consider in detail 
further below in assessing the conduct of Mr Gelagotis. As I will later explain, in my opinion 
it was not legitimate. However, I am not persuaded that Mr Hatwell’s role in the exclusion of 
Mr S.P. from the lunchroom was significant. 

[100] Mr Hatwell did not instigate, organise or encourage the proposed exclusion of Mr S.P
from the lunchroom. He understood that a proposal had been raised to exclude Mr S.P. from 
the lunchroom,116 and that there was a concern about UGL contractors in the lunchroom.117

He was not opposed to what had been raised. His failure to take any action to stop the 
proposal being acted upon was deserving of censure. But it is not established that Mr Hatwell

                                               
114 PN661-PN665
115 PN664
116 PN820
117 PN656-658








[2018] FWC 2398

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had any active role in raising or implementing the proposal. In my view, the allegation that 
Mr Hatwell was ‘directly involved in a decision to exclude Mr S.P. from the lunch room’ is 
not substantiated. 

Did Mr Hatwell make offensive and intimidating remarks to Mr Flens?

[101] The termination letter provided to Mr Hatwell stated that on 31 July 2017 he said to 
Mr Flens: 

‘You’re doing every cunt’s job now are you?’ and ‘You’re working your RDO today, 
oh, that’s right, you fucking traded if off, you don’t have an RDO, you’re a fucking 
scab.’118

[102] Mr Hatwell denies that he said these things to Mr Flens. Esso’s investigation found 
that he did. The Commission heard direct evidence on this matter from Mr Hatwell and Mr 
Flens. It also heard evidence from Mr Aitken, who was working in the vicinity at the time Mr 
Hatwell spoke to Mr Flens. The Commission also heard evidence from those whom Mr Flens 
told about the incident, namely Mr Little, Mr Tabone and Mr Henness.

[103] Mr Flens’ account of the altercation with Mr Hatwell on 31 August 2017 was as 
follows:

‘[26] On 31 July 2017, at approximately after lunch, Mr Hatwell called me a ‘fucking 
scab’. The incident that led up to this occurred as follows:

(a) I was setting up a steamer for an upcoming job. The job required me to set 
up an earth lead between all of the equipment, get the generator out and 
connect the diesel to the steamer. The generator we were using was from a hire 
company; 

(b) Prior to using the equipment, an electrician would ordinarily check 
everything is connected properly. In our crew we didn't have any electricians, 
only the two fitters. Jon Aitken, an electrician employed by Esso arrived during 
the course of the day and started checking the continuities; 

(c) Jon Aitken asked me to change the way one of the leads was earthed, and 
said words to the effect "No that needs to run over there instead" or "No this 
has to change you can't run it to this point, it has to be run over there where 
it's a proper earth". This sort of issue has never been raised in the past, 
however I changed the lead and was in the process of running it underneath 
the road so that it could be run to a grounded earth; 

(d) While I was in the process of running the lead under the road, Michael 
Hatwell arrived at the job site and spoke to Jon Aitken. He then approached 
me and we had a conversation to the following effect: 

                                               
118 Statement of Michael Hatwell, Exhibit A3 at MH-9








[2018] FWC 2398

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Hatwell: "And who's going to check the generator? You can't just hook this shit up. 
Just because it comes on the back of a fucking truck doesn't mean it's ready to run. It's 
gotta be checked". 

Flens: "Well we set it up, can you check it?" 

Hatwell: "When do you want us to do that?" 

Flens: "That’s a separate permit"

Hatwell: "I suppose you want us to fucking do that?"

Flens: "I'll be talking with Derek regarding that” or "I'll ask Derek to get you to do 
that" 

Hatwell: “Who’s hooked this up?” 

I ignored the question. 

Hatwell: [leaning in very close and bumping into me] “Who’s hooked the fucking 
generator up? 

Flens: “I did” 

Hatwell: “Why’s that?” 

Flens: “it’s a plug, I plugged it in…” 

Hatwell: “oh you’re doing every cunt’s job now are you?” 

I ignored the question. 

[27] I have never been required to check something before I set it up. That's the 
electrician’s job to make sure the equipment is set up correctly. I believe Michael 
Hatwell was unhappy because I had plugged the generator in, however we weren't at 
the stage of turning it on and wouldn't have done so without it being checked; 

[28] Michael Hatwell continued to talk to Jon Aitken and they checked the continuity 
leads I had been running. I was running a lead through a long drain and was on the 
other side of the drain working on my own and Michael Hatwell then walked past me 
and said words to the effect: 

"Oh, you're working your RDO today, oh, that's right, you fucking traded that off, you 
haven't got an RDO, have you? You're a fucking scab"” 

I ignored him and he kept on working.’119

                                               
119 Statement of Travis Flens, Exhibit R11 at paragraphs 26-28








[2018] FWC 2398

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[104] Mr Hatwell’s account of his exchange with Mr Flens is set out in his second witness 
statement. Around 4.00pm in the afternoon, he walked past a ‘steaming’ job, and noticed that 
an electrical generator was set up. There was a temporary lead from the generator to the 
steaming unit that looked messy. Mr Hatwell was one of only two electrical safety inspectors 
on the site, and had a duty of care to follow up on any issues he saw on site and ensure that 
problems were rectified. Mr Aitken, a power and control technician employed by Esso, was 
working nearby. He told Mr Hatwell that he was there to do continuity checks (wiring checks 
that prevent static electricity), and that he had not set up or checked the generator.120

According to Mr Hatwell, he then had a conversation with Mr Flens to the following effect:

‘I said: “Who hooked up the generator?”

Travis said: “What do you mean?”

I said: “Who hooked up the generator?”

[I was frustrated at this point because I thought my question
was pretty clear, and Travis seemed to be dismissive of the
question]

Travis said: “It’s just a plug-in lead”

I said: “It’s not that simple. It needs to be checked by an electrician. The plugs and 
the circuit breakers have to be the correct size to match the rating of the power cable 
and the equipment all has to be tested for correct operation”

[Esso requires this under its work management system]

Travis said: “I was going to get it checked”

I said: “By who?”

[I knew at the time that the only electrical people on site were Esso employees because 
there were no other electrical contractors on site at the time]

Travis said: “I’ll go and see Derek”

I said: “Don’t bother. I’ll go and talk to him about it right now. Don’t hook this up or 
start it until it’s been checked or tested by one of our guys.”’121

[105] Mr Hatwell’s evidence was that, as he started to walk away, he noticed that there were 
no other contractors or Esso employees on the job, and he asked Mr Flens ‘Is it an RDO 
today?’ He asked this, he says, because an RDO would explain why no one else was there, 
and it was a Monday, which was a common day for RDO’s.

                                               
120 Statement of Michael Hatwell in reply, Exhibit A4 at paragraphs 19-22
121 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 23








[2018] FWC 2398

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The contentions for Mr Hatwell

[106] It was contended for Mr Hatwell that he had no reason to say that Mr Flens was ‘doing 
every cunt’s job’, because factually this was not the case. He contended that Mr Flens’ theory 
about why Mr Hatwell would make such a statement - that UGL contractors were perceived to 
be taking Esso employees’ jobs - was not plausible. The relevant passages of Mr Flens’
evidence under cross-examination are as follows: 

‘In your witness statement, pages 8 and 9, you've got the whole conversation with Mr 
Hatwell occurring and then you say he told you at the end of that conversation, 
"You're doing every cunt's job"?---That's what I said. He came over, he had a 
discussion with Jon Aitken, he asked me what I was doing, and then said, "You're 
doing every cunt's job". It's believed being a UGL employee contractor that we are 
taking the Esso persons' jobs away and so that's one person's job I'm doing. It 
would've been seen that me running continuity leads was me doing electrician's work, 
so that's a second person's job that I'm taking away, so I'm doing every cunt's job. 

So you had in your mind that Mr Hatwell had the view that you were taking other 
people's jobs?---Yes. 

He didn't say that, did he?---He did. He said, "You're doing every cunt's job". 

Before the contract changeover did you do continuity leads?---Yes, we run the 
continuity out. We did everything like that. The Balec electricians came along.

They checked where we had placed them, and they checked the continuity, they 
checked the generator, they checked boiler rotation, signed off. 

Before the contract changeover did you set up the generators?---Yes. 

So you were doing nothing on 31 July that you hadn't done before the contract 
changeover?---Correct. 

You were doing work on 31 July that Esso employees had not done during the UGLK 
days?---They had on their own separate jobs. 

On their own separate jobs?---Yes. So no interaction with them. 

But you were entirely separate, weren't you?---Yes. 

You had entirely separate work units?---Yes. 

There was simply no occasion in which you were taking anyone's job by doing what 
you were doing as you were doing it during the UGLK days, was there?---No.’122

[107] UGL employees had taken the place of UGLK employees. Some former UGLK 
employees, such as Mr Flens and Mr S.P., had taken up employment with UGL. They had not 
taken the jobs of Esso employees. And the evidence establishes that Esso and UGLK 

                                               
122 PN4873-PN4883








[2018] FWC 2398

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maintenance employees generally had little interaction and worked separately.123 However, 
there had been statements of concern about UGL employees potentially taking the jobs of 
Esso employees. It was put to Mr Hatwell in cross-examination that the conditions of 
employment being offered at UGL did not affect Esso employees’ conditions, to which Mr 
Hatwell said ‘not directly’.124 He said that there was ‘potential down the track that there 
wouldn’t be more Esso guys hired if the contract guys were at a lower rate.’125

[108] Mr Hatwell gave evidence that he was concerned from the way in which Mr Flens had 
responded to him that the generator might be used without first being tested.126 Such testing 
had to be undertaken by an electrical worker.127 Mr Aitken, who heard this part of the 
conversation, gave evidence that he had the impression from the way Mr Flens said ‘it’s just a 
plug in’ that Mr Flens did not think an inspection was required before he (Mr Flens) ran the 
generator.128

[109] An abusive statement is not necessarily concerned with factual accuracy, but with 
making a point. For example, on any view Mr Flens was not doing literally every person’s 
job. That does not make the statement ‘you’re doing every cunt’s job now’ unlikely. 
However, one would expect an abusive statement such as this to have some notional factual or 
circumstantial reference point. It would be enough that he was doing one other person’s job 
for the abusive statement to ‘make sense’. In my view, there was no legitimate reason for Mr 
Hatwell to say to Mr Flens that he was doing ‘every cunt’s job’. However, there was a 
reference point for such a statement. The imputation could quite realistically have been that 
Mr Flens was doing a former UGLK employee’s job, or an Esso maintenance employee’s job 
(in by-passing the required testing, or as Mr Flens conjectured, running continuity leads); or 
more generally that he was doing work that was beyond his remit, namely setting up a 
generator to use it, or allow it to be used, without the necessary checks. 

[110] Mr Hatwell also contended that he had no reason to abuse Mr Flens for trading off his 
RDO, when factually Mr Flens had not traded it off. It was contended that Mr Hatwell had no 
specific knowledge of the terms and conditions of those who had accepted employment with 
UGL,129 and that the evidence showed that Mr Flens did have an RDO entitlement but was 
working, and for doing so acquired a day in lieu.130 It was contended that Mr Hatwell 
therefore had no reason to say to Mr Flens ‘Oh, you're working your RDO today, oh, that's 
right, you fucking traded that off, you haven't got an RDO, have you? You're a fucking scab.’

[111] However, in the circumstances, the fact that Mr Hatwell had no specific knowledge of 
UGL conditions does not tell against him having made an abusive statement about RDO’s. Mr 
Hatwell says he asked Mr Flens if it was an RDO, as it would have explained why no one else 
was there, and Monday was a common day for an RDO.131 In my view, it would have been 
reasonable for Mr Hatwell to think that Mr Flens might be working because he did not have 

                                               
123 PN4708-PN4709, PN4975 
124 PN396
125 PN398
126 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 28; PN1056
127 PN1060
128 Statement of Jonathan Aitken in reply, Exhibit A11 at paragraph 7; PN2630
129 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 24
130 PN4566 
131 Statement of Michael Hatwell in reply, Exhibit A4 at paragraph 24








[2018] FWC 2398

26

an RDO entitlement. There was reason enough for Mr Hatwell, on his own evidence, to raise 
the issue of an RDO. This provides a reasonable reference point for an abusive statement 
concerning the working of RDO’s. As noted above, it does not matter whether the abusive 
statement was true or not, as an abusive statement is not necessarily concerned with factual 
accuracy, but with making a point in a way that makes sense. 

[112] For Mr Hatwell, it was contended that there were several other aspects of Mr Flens’ 
evidence that should lead the Commission to prefer Mr Hatwell’s version of events. 

[113] First, in his interview with Esso (but not mentioned in his statement), Mr Flens said 
that when Mr Hatwell walked past him and called him a scab, he was six metres away, and 
that Mr Flens was wearing both ear plugs and ear muffs in a noisy environment.132 Mr Flens
also stated that he and Mr Hatwell moved further apart from one another. It was suggested to 
Mr Flens in cross-examination that he had not heard properly, and that Mr Hatwell had simply 
asked him about whether it was an RDO.133

[114] Mr Flens rejected the suggestion that he misunderstood Mr Hatwell. He said that Mr 
Hatwell had not simply asked if it was an RDO. Mr Flens conceded that it was a noisy 
environment, and did not seek to downplay the distance between himself and Mr Hatwell. He 
explained that although he was wearing ear protection, ‘we talked, we have to talk, you 
elevate your voice to talk.’134 In this regard, I note that Mr Flens evidently had no difficulty 
hearing Mr Hatwell’s reference to RDO’s, which Mr Hatwell acknowledges he made. There is 
no reason to think that he was not able to hear the rest of what was said. There was no 
indication in the evidence that Mr Flens was having difficulty hearing or understanding Mr 
Hatwell. 

[115] Secondly, it was contended that Mr Flens’ evidence of what Mr Hatwell said to him 
was not consistent with the evidence of those to whom Mr Flens reported the matter. The 
investigation concluded that Mr Hatwell called Mr Flens ‘dog’, ‘scab’, ‘grub’ and ‘scabby 
contractor’, based on the reports from Mr Henness, Mr Tabone, Mr Little as well as Mr Flens. 
The evidence of these other witnesses was that Mr Flens told them that Mr Hatwell called him 
a grub for trading in his working conditions (Mr Little);135 a ‘scabby contractor’ and a ‘grubby 
cunt’ (Mr Henness);136 and a ‘dog’ and a ‘scab’ (Mr Tabone).137 It was submitted for Mr 
Hatwell that Mr Flens’ story has grown in the telling. 

[116] However, Mr Flens’ own evidence of the words used by Mr Hatwell was clear and 
consistent. Mr Flens did not seek to modify his account of events to accommodate the 
evidence of others. Rather, Mr Flens said simply that the other witnesses can give their 
evidence, and he will give his.138 The fact that others reported Mr Flens using different words 
may reflect their different recollection of what Mr Flens recounted to them. In this regard, it 
will be recalled that a variety of abusive epithets have been used at Longford. For a person to 
whom an incident is reported, it may not be of great significance which particular word is 

                                               
132 PN4794-PN4803
133 PN4804-4814
134 PN4810
135 PN5011
136 PN5138-PN5142
137 Statement of Frank Tabone, Exhibit R10 at paragraph 22
138 PN4820-4822, PN4828-4832








[2018] FWC 2398

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used. For example, Mr Little said in his statement that Mr Flens told him on 31 July 2017 that 
Mr Hatwell had just called him a ‘grub or scab for trading in or working his RDO’.139 For Mr 
Little the detail was not personal; it was of less significance to him whether the word used 
was grub or scab, both of which had been used on site. But for a person at whom it is directed, 
words of abuse would ring in his ears. Mr Flens would be more likely to remember the words
accurately, and Mr Flens’ account has been unwavering. 

[117] Thirdly, it was contended that Mr Flens’ evidence about the physical contact with Mr 
Hatwell changed when he was pressed about it, and that he began to downplay it. This is not 
how I perceived it. In his interview with Esso, Mr Flens said that Mr Hatwell tapped him on 
the arm with the back of his hand.140 In cross-examination he referred to ‘physical contact’, 
and also used the word ‘bumped’.141 He did not in my view seek either to emphasise or 
downplay the contact. It was contended for Mr Hatwell that Mr Flens did not re-iterate in oral 
evidence his earlier statement that he ‘could smell Mr Hatwell’s breath’ because he was so 
close.142 I do not see that as significant. 

[118] Fourthly, Mr Aitkens’ evidence was that he didn’t observe any contact or close 
interaction between Mr Hatwell and Mr Flens.143 He also said that he did not hear Mr Hatwell 
use the words that Mr Flens attributes to him, but was able to overhear the conversation 
between them about who plugged in the generator.144 However, Mr Aitken admitted that he 
was not watching the two men all the time.145

[119] Further, in cross-examination, Mr Flens stated that the conversation between him and 
Mr Hatwell ended with Mr Hatwell saying ‘We’ll see about that,’ until Mr Hatwell later 
passed him by and called him a ‘scab’.146 Mr Hatwell contends that this conflicts with the 
account of the conversation Mr Flens provided in his statement. There, he says that that part 
of the conversation finished with ‘You’re doing every cunt’s job now’. Moreover, there was 
no mention in the statement of ‘We’ll see about that’. However, I do not consider these to be 
significant discrepancies.

[120] Mr Hatwell also submitted that there is no evidence of his saying or doing anything 
like what Mr Flens attributes to him on any previous occasion, and that on Mr Flens’ 
evidence, this was a one-off. I accept this. There is certainly no evidence of Mr Hatwell 
abusing anyone else in the manner alleged.

Why Mr Flens’ evidence is accepted

[121] There is a direct conflict between the evidence of Mr Flens, who says that Mr Hatwell 
called him a ‘fucking scab’ and otherwise abused him as set out above, and Mr Hatwell who 
flatly denies it. I accept the evidence of Mr Flens over that of Mr Hatwell for the following 
reasons. 

                                               
139 Statement of Rod Little, Exhibit R12 at paragraph 13
140 Statement of Travis Flens, Exhibit R11 at TF-5 
141See PN4896-PN4903
142 PN4896
143 Statement of Jonathan Aitken in reply, Exhibit A11 at paragraph 9
144 PN2628
145 PN2665-PN2666 
146 PN4790-PN4791








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[122] First, Mr Flens was in my assessment a credible and convincing witness. He made 
appropriate concessions. He did not seek to answer questions strategically, but simply and 
spontaneously. He gave frank and direct answers to questions under cross-examination. In the 
course of Mr Flens’ evidence, he turned to me and said, in reference to his conversation with 
Mr Hatwell, ‘I was told I was a fucking scab’.147 In my judgement, Mr Flens was telling the 
truth. Further, from his tone of voice and demeanour, I consider that he found these words to 
be very upsetting.

[123] Mr Hatwell contended that Mr Flens appeared to downplay the effect of the treatment 
he had received on the protest line.148 On Mr Hatwell’s argument, this is significant, as it goes 
to what he says might be Mr Flens’ motivation to make false allegations against him (I will 
return to this question below). It would be a reasonable human reaction to find treatment of 
the kind to which Mr Flens has been subjected on the protest line upsetting. In addition to 
having his name appear on the sign ‘employee of the week’ next to ‘scabby the rat’,149 Mr 
Flens has been subjected to various abuse. He has had eggs thrown at his car. His tyres have 
been punctured.150 However, I do not agree that Mr Flens downplayed his mistreatment on the 
protest line or the effect it has had on him. Mr Flens described the relevant conduct in detail in 
his witness statement.151 He accepted that the personal effect of this mistreatment had been 
upsetting ‘to a degree’.152 He did not specify to what degree he found it upsetting, and this 
answer in my view reflected his stoic disposition. However, this does not tell against the 
reliability of his evidence.

[124] Secondly, Mr Hatwell had a motive to abuse Mr Flens, namely because he had 
accepted employment with UGL. The motive is established by reference to circumstantial 
evidence and Mr Hatwell’s own evidence. It explains why Mr Hatwell might have said the 
words attributed to him by Mr Flens. Mr Hatwell acknowledged that he agreed with the 
union’s position that former UGLK employees should not accept employment with UGL.153

Mr Flens was a former UGLK employee who had done just that. Mr Hatwell did not think it 
was right that UGL had offered employment on lower conditions than those which applied at 
UGLK.154 Mr Hatwell acknowledged that as a delegate, he upheld the ETU position on site 
amongst the electricians.155 The banners on the protest line, on which the ETU maintained a 
presence, admonished people not to be ‘scabby the rat’. But Mr Flens had accepted 
employment with UGL. In my view, these circumstances provide a compelling motive for Mr 
Hatwell to use abusive language towards Mr Flens, and in particular to call him a ‘scab’.  
Such a motive is consistent with the case put against Mr Hatwell by Esso.156

                                               
147 PN4840-PN4842
148 Applicants’ final written submissions dated 27 February 2018 at paragraph 77(c)
149 PN961
150 Statement of Travis Flens, Exhibit R11 at paragraphs 34-42
151 Statement of Travis Flens, Exhibit R11 at paragraph 8 and following
152 PN4681
153 PN437-PN438
154 PN411-PN412
155 PN219
156 See for example Respondent’s closing submissions, paragraphs 121 – 123; see also cross examination of Mr Hatwell at 

PN1110








[2018] FWC 2398

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[125] Thirdly, and conversely, I do not consider that Mr Flens had a plausible motive to 
invent a complaint against Mr Hatwell. There is no credible reason as to why Mr Flens would 
make a false allegation against Mr Hatwell. It is common ground that, although they have 
known each other for a long time, Mr Flens and Mr Hatwell do not know each other well. 
They have had little to do with one another. There is no evidence of any history of personal 
animosity, no previous incidents involving altercations, arguments, hurt feelings, 
disagreements or even any significant interactions. 

[126] Counsel for Mr Hatwell contended that Mr Flens had been subjected to intense 
criticism from former UGLK employees on the protest line, and that he held a grudge against 
the union. It was submitted that Mr Hatwell was a delegate and representative of the union, 
and was therefore a person on whom Mr Flens could exact retribution for the hurt visited on 
him by the union and its members on the protest line. However, Mr Flens was very open 
about his attitude to those who had subjected him to abuse. It was put to Mr Flens in cross-
examination that he ‘blamed the unions and the members who are standing out the front in the 
protest line for creating [these kinds of effects] on you and your family’. He responded 
candidly and without hesitation: ‘fair statement’.157 Mr Flens acknowledged that he believed 
that Esso employees were siding with the protestors,158 and that he knew that Mr Hatwell was 
a union delegate.159 However, Mr Flens said that he did not hold a grudge against the union. 
He said unions ‘have their place,’160 and that he remains a union member. He openly 
conceded that he did have a ‘grudge’ against the former UGLK employees who had subjected 
him to ill treatment on the protest line.161 But Mr Hatwell was not such an employee and had 
not previously mistreated Mr Flens. 

[127] Even if Mr Flens did have a grudge against the union, it is not at all clear why he
would have selected Mr Hatwell as the unfortunate victim for an act of revenge. The parties’ 
arguments concerning the application of the test in Briginshaw engaged the proposition that 
ordinarily people do not engage in serious misbehaviour. These observations were made for 
the purpose of explaining the proper approach to the burden of proof in civil proceedings. 
However, they are also observations of common sense and are relevant beyond the setting of 
the burden of proof to the consideration of contested points of evidence as between two 
witnesses. 

[128] According to the course of common experience, a person who bears a grudge against a 
group will not ordinarily seek revenge against the group by targeting a random member of it. 
Further, if people seek revenge, it is usually directed at someone whom they consider to have 
wronged them. Mr Hatwell had not done anything to Mr Flens that would provide a plausible 
motive for him to seek revenge. In particular, as the applicants emphasised in their 
submissions on the industrial context, there is no evidence of Mr Hatwell having been present 
on the protest line, or having been involved in adverse conduct towards Mr Flens, other than 
as alleged in the investigation. In my view it is inherently unlikely that Mr Flens would target 
Mr Hatwell for revenge by concocting allegations against him.  For Mr Flens to make a false 
accusation against Mr Hatwell in order to exact revenge against the unions and their members 
would be an improbable act of spite and treachery, of Shakespearean dimensions. 

                                               
157 PN4697 
158 PN4702
159 PN4728
160 PN4814
161 PN4815








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[129] There is simply no evidentiary basis to support an inference that Mr Flens made his 
complaint against Mr Hatwell in order to retaliate against the unions, Esso employees, or 
former UGLK employees, or indeed to retaliate against Mr Hatwell either personally or as 
some unfortunate proxy for anyone else.

[130] I note that in his response to the allegations letter from Esso, Mr Hatwell raised a 
different possible motivation for Mr Flens to invent allegations against him. He said that he 
could only assume that Mr Flens was reacting to Mr Hatwell’s criticism of his work, and the 
fact that Mr Hatwell had raised a safety issue.162 This seems to me an unlikely motivation. Mr 
Flens’ job was not at risk as a result of Mr Hatwell’s intervention, nor did Mr Flens suffer any 
other adverse consequences from it. 

[131] These three reasons - the credibility of Mr Flens’ evidence, the presence of a 
compelling motive for Mr Hatwell to abuse to Mr Flens, and the absence of a plausible 
motivation for Mr Flens to invent allegations against Mr Hatwell - provide more than a 
sufficient basis for me to accept Mr Flens’ evidence over that of Mr Hatwell in relation to 
what occurred during their exchange on 31 July 2017. However I shall mention some further 
reasons. 

[132] Fourthly, Mr Hatwell acknowledged that he asked Mr Flens about an RDO. He 
admitted that there was no reason for him to ask Mr Flens about his terms and conditions of 
employment.163 I find it improbable that Mr Hatwell would neutrally, and out of sheer 
curiosity, ask such a question of a UGL contractor whom he did not know well. Mr Hatwell 
also acknowledged that shortly after his conversation with Mr Flens, he asked Mr Little, 
another UGL employee, about whether he was on penalty rates.164 I leave to one side whether 
Mr Hatwell ‘quizzed’ Mr Little about this. The uncontested evidence is that Mr Hatwell asked 
two employees of UGL about their conditions of employment. Mr Hatwell’s acknowledged 
position was that he did not think people should be accepting offers of employment with 
UGL.165 (I note that Mr Hatwell, Mr Gelagotis and various other witnesses maintained that 
they approached employees of contractors with caution.166 Asking a UGL employee about one 
of their conditions of employment does not strike me as a cautious act.) Mr Hatwell’s 
questions about Mr Flens’ and Mr Little’s conditions of employment at UGL touch on the 
motive Mr Hatwell had for abusing Mr Flens, namely acceptance of employment with UGL. 
In my view, these questions are consistent with the existence of such a motive, and show that 
UGL conditions were on Mr Hatwell’s mind during his interaction with Mr Flens.

[133] Fifthly, the language complained of by Mr Flens is consistent with that found on 
signage on the protest line, where the unions maintained a presence. Mr Hatwell was a CEPU 
delegate and supported the unions’ position. Mr Flens was a person whose name appeared on 
a list at the protest line of those who had signed contracts with UGL. He was a person against 
whom the word ‘scab’, as used on the protest line, was directed, and might ‘logically’ 
(although unacceptably) be used: he had accepted a contract with UGL on terms inferior to 
those that had applied at UGLK. 

                                               
162 Statement of Michael Hatwell, Exhibit A3, MH-8 at paragraph 3
163 PN1111
164 PN1125
165 PN436-PN439
166 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.9);  Statement of Michael Hatwell, Exhibit A3 at MH-2 (pp.15, 17)








[2018] FWC 2398

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[134] Sixthly, the word ‘scab’ was used in the workplace. Mr Hatwell initially gave 
evidence that he did not use this language, but that he may have heard it on site – although he 
could not recall who used it.167 However under cross-examination, he acknowledged that he 
used the term ‘scab’ (albeit, he said, in talking about issues that were happening, rather than 
directing the word at people).168 His evidence was that all members of his workshop used the 
word amongst themselves.169 He said there were lots of conversations on site that involved the 
words ‘scab’, ‘scum’, ‘scabby’, ‘dog’, ‘grub’, or similar terms, and ‘scabby the rat’, in 
reference to contractors.170 It was ‘part of the environment.’171 Mr Hatwell acknowledged that 
his union’s conduct outside Longford was sending a message to UGL workers that they were 
scabs.172 Mr Burton also accepted that Esso employees considered UGL employees to be 
‘scabs’: ‘we talked about people taking jobs and used the term, ‘scab’, to describe them’.173

The evidence suggests that the use of terms such as ‘scab’, at least on the protest line and 
among Esso employees themselves, was common place and had become normalised. In 
normal circumstances, a person does not call another person a scab. But these are not normal 
circumstances. In my view, they are consistent with a conclusion that Mr Hatwell did use the 
word scab in his exchange with Mr Flens. 

[135] I note that the evidence in the preceding paragraph is the extent of the reliable 
evidence that goes to any broader allegation that Mr Hatwell ‘used offensive and intimidating 
language towards and about employees of contractors’ more generally. Clearly it relates to 
use of language about, not towards contractors. In the absence of further context (such as how 
discretely or otherwise the language was used), I do not consider this broader allegation to 
found a separate valid reason for termination.

[136] I have considered the evidence of Mr Aitken, who said that he did not hear Mr Hatwell
make the abusive comments attributed to him.174 However, Mr Hatwell was not directing his 
words to Mr Aitken. Mr Hatwell had his back to Mr Aitken for a period of time.175 It appears 
that he was moving around and focused on the tasks for which he was responsible. Mr Aitken
acknowledged that he did not see or hear the second part of the conversation in which Mr 
Hatwell was leaving the area and made the remark about the RDO.176 In short, Mr Aitken’s 
evidence that he did not hear the abuse does not mean that it did not occur or is unlikely to 
have occurred. There was ample opportunity for the words to be uttered without Mr Aitken 
being any the wiser. 

[137] I would note that the fact that the altercation arose in the setting of Mr Hatwell raising
safety concerns is not in my view of particular relevance. Mr Hatwell’s position as an 
electrical inspector establishes his expertise on technical matters.  It appears that Mr Aitken 

                                               
167 Statement of Michael Hatwell, Exhibit A3 at MH-4 (pp.9-10)
168 PN1161-PN1162
169 PN1163
170 PN1146-PN1149
171 PN1153 
172 PN965-PN968
173 PN2782-2783
174 PN2705
175 PN1095
176 PN2705








[2018] FWC 2398

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was at the job as the electrician responsible for checking continuities177 and that checking the 
generator was a separate job for another work permit. Mr Flens assumed that Mr Aitken was 
the responsible electrician; and ‘you wouldn’t normally require two Esso electrical employees 
on that type of job [continuity checks]’.178 There is some suggestion in this statement that Mr 
Flens was receiving unwarranted additional attention, however I do not consider this to be the 
case. Mr Hatwell’s explanation for showing interest in Mr Flens’ work was cogent, and given 
Mr Hatwell’s electrical expertise, I accept it. In my view the reasons for Mr Hatwell initially 
engaging with Mr Flens are not of great significance.

Conclusion on valid reason for Mr Hatwell’s dismissal

[138] For the above reasons, I accept Mr Flens’ evidence that Mr Hatwell said to him: 
‘You’re doing every cunt’s job now are you’, and ‘you don’t have an RDO, you’re a fucking 
scab’. I am persuaded that these words were spoken. 

[139] I also find that by speaking to Mr Flens in this way, Mr Hatwell contravened Esso’s 
harassment policy. I address the terms of the policy in further detail in relation to Mr 
Gelagotis, however it suffices to note that it prohibits any inappropriate conduct that has the 
purpose or effect of creating an intimidating, hostile or offensive work environment.179 The 
policy applies the standard of a reasonable person.180

[140] It was a term of Mr Hatwell’s contract of employment that he comply with the 
policy.181 He was reminded, in the warning letter he received on 30 June 2017 in relation to 
his unauthorised absence from the site, that it remained a condition of his employment that he 
comply with company policy.182 He was also reminded of the harassment policy on 22 June 
2017, the day the protest line commenced, when Mr Kostelnik sent an email to all employees 
and contractors, including Mr Hatwell, reiterating that they were to comply with the 
Harassment Policy.183 Mr Hatwell had himself invoked the harassment policy on two 
occasions.184

[141] The obligations set by the harassment policy were in my view reasonable. Mr Hatwell 
contravened the policy by engaging in inappropriate conduct that had ‘the purpose or effect of 
… creating an intimidating, hostile or offensive work environment’, namely by uttering the 
abusive words to Mr Flens on 31 July 2017. 

[142] In closing oral submissions, counsel for Mr Hatwell noted that, in her evidence, Ms 
Butler had said that she would not dismiss an employee for the single use of the word 
‘scab’.185 The context of this evidence makes clear that she is not referring to the single use of 
the word ‘scab’ by Mr Hatwell in the circumstances of the present case. She was answering a 

                                               
177 PN2647, PN2683; PN4756; Statement of Travis Flens, Exhibit R11 at paragraphs 26(d), 27
178 Statement of Travis Flens, Exhibit R11 at paragraph 30
179 Statement of Kirsteen Butler, Exhibit R8, KB-12 (p.4)
180 Statement of Kirsteen Butler, Exhibit R8, KB-12 (p.6)
181 Statement of Kirsteen Butler, Exhibit R8, KB-2, KB-8
182 Statement of Kirsteen Butler, Exhibit R8, KB-3
183 Statement of Kirsteen Butler, Exhibit R8 at paragraph 43; KB-22
184 Email from Kirsteen Butler to Michael Hatwell dated 11 July 2017 including 22 June 2017 email chain, Exhibit R2; 

PN293 - PN294, PN900 - PN914 
185 PN4474








[2018] FWC 2398

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question of an un-contextualised nature. As I discuss further below in the context of Mr 
Gelagotis’ alleged conduct, an abusive word can be used in a range of possible contexts 
(including, significantly, in private). Ms Butler was not in my view suggesting that, had the 
only allegation against Mr Hatwell concerned his use of the word scab in the context of what 
he said to Mr Flens, she would not have dismissed him.

[143] In any event, regardless of what may be Ms Butler’s view of the matter, I consider that 
to call a person a ‘fucking scab’ in the circumstances of my findings above is a very serious 
matter. It constitutes a valid reason for dismissal. I consider further below whether the 
conduct amounts to serious misconduct, and the significance of clause 22 of the Onshore
Agreement.

Was there a valid reason for Mr Gelagotis’ dismissal?

[144] The termination letter handed to Mr Gelagotis on 30 October 2017 stated that he had 
engaged in ‘conduct designed to ignore, exclude and isolate employees of contractors on site 
including by initiating discussions with Mick Hatwell and Shane Bennett seeking to have [Mr 
S.P.] excluded from the lunchroom, and the use of offensive and intimidating language 
towards and about employees of contractors’ (see [66] above).186

[145] There is a preliminary question as to whether there are three reasons for Mr Gelagotis’ 
dismissal, or only two. Esso’s final written submissions focus on two matters: Mr Gelagotis’
role in Mr S.P.’s exclusion from the lunchroom, and his use of language towards and about 
contractors. The broader proposition that Mr Gelagotis engaged in conduct to ignore, exclude 
and isolate contractors is not seriously pressed by Esso, and in my view there is little evidence 
to support such a proposition. However, it is appropriate that I address the matter briefly. 

[146] The principal source of evidence going to the more general allegation that Mr 
Gelagotis sought to ‘ignore, exclude and isolate’ employees of contractors was Mr Jordan 
Knight. He was one of the two contractor-apprentices who were asked to leave the lunchroom 
in January 2017. Mr Gelagotis gave evidence that Mr Knight is his friend.187 According to 
Esso, Mr Gelagotis warned Mr Knight not to accept employment with UGL, and that if he did
accept it no one would talk to him just like no one would talk to Mr S.P.

[147] Mr Knight was not called or summonsed to give evidence before the Commission. Mr 
Gelagotis admitted having a conversation with Mr Knight about the question of a UGL 
contract but maintained that he said ‘have a good think about it and do what’s right for you 
and in your best interests, but you obviously have to know the ramifications of both sides.’188

[148] At the hearing, Esso tendered a file note prepared by Ms McMillan189 of a
conversation she had with Mr Knight on 9 October 2017. Ms McMillan records that she asked 
Mr Knight whether Mr Gelagotis had said to him ‘No one’s going to talk to you like no one’s 
talking to [Mr S.P.]’. The response recorded by Ms McMillan was that Mr Knight told her 
that Mr Gelagotis said to him, in the context of him potentially signing a UGL contract, 
‘you’ll probably find that people around here won’t talk to you’. In my view it is clear that Mr 

                                               
186 Statement of Kirsteen Butler, Exhibit R8, KB-55
187 PN1571
188 PN2134-PN2135
189 Handwritten notes of Melinda McMillan re para 197 of statement in annexure MM-14, Exhibit R4








[2018] FWC 2398

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Knight’s position is that Mr Gelagotis did not say to him the words ‘like no one’s going to 
speak to [Mr S.P.]’. The second version of Mr Knight’s statement appears to have come from 
Esso’s interview with Mr S.P. and Mrs S.P. During the interview, Mrs S.P. answered a 
number of questions directed to Mr S.P. It was Mrs S.P. who stated that Mr Gelagotis had 
said to Mr Knight that, if he signed a UGL contract, people might not talk to him ‘like we are 
not going to talk to [Mr S.P].’190

[149] I accept the position of Mr Gelagotis that his comments to Mr Knight did not connote 
any threat.191 They were a statement of fact and a practical warning to his friend. However, 
Mr Gelagotis’ acknowledgement that there would be ‘ramifications’ for Mr Knight if he 
signed a contract is evidence of the tense environment at Longford.

[150] The other alleged instance of Mr Gelagotis ‘ignoring, isolating or excluding’ 
employees of contractors was that he ignored Mr S.P. Ms Butler gave evidence that she 
accepted Mr S.P.’s evidence that Mr Gelagotis had been ignoring him and treating him 
differently because he was a UGL employee.192

[151] It will be recalled that Mr S.P. named Mr Gelagotis in his note as one of those who 
‘incite hatred, segregation, isolation between Esso workers and contractors’. This claim was 
not repeated by Mr S.P. during his interview with Esso. When Mr S.P. was asked about what 
Mr Gelagotis had said to him about signing the UGL contract, Mr S.P. said: ‘Oh, he asked 
what, what I was going to do. And I said oh well I’m going to sign and he said alright, alright, 
yeah’. The interview then records Mrs S.P. saying ‘and then he didn’t talk to you.’193 The 
conversation then moved on. 

[152] In my view, the evidence does not sustain a conclusion that Mr Gelagotis ‘ignored’ Mr 
S.P. Mr Gelagotis admits that he kept interaction with Mr S.P. to a minimum.194 But this does 
not mean that he ignored him. In any event, in my view, the evidence does not substantiate the 
more general allegation that Mr Gelagotis ‘ignored, excluded and isolated contractors.’ It is 
not a valid reason for dismissal.

Initiating discussions seeking to have Mr S.P. excluded from the lunchroom

[153] The circumstances surrounding Mr S.P. being excluded from the lunchroom have been 
addressed earlier in relation to Mr Hatwell’s dismissal, and it is not necessary to repeat what 
was said earlier, but instead to add to it, focusing on the actions and motivations of Mr 
Gelagotis. 

[154] I note that although the grounds for termination refer to Mr Gelagotis initiating 
discussion ‘with Mick Hatwell and Shane Bennett’, it is presently appropriate to focus on the 
role of Mr Gelagotis. What Mr Hatwell did or did not do may be of relevance, but the 
Commission must consider, and establish, what Mr Gelagotis did in connection with Mr S.P.
being asked not to use the lunchroom, and why.

                                               
190 Statement of Melinda McMillan, Exhibit R5, MM-13 (p.5)
191 Applicants’ final submissions dated 27 February 2018 at paragraph 98
192 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 97(a) and (b)
193 Statement of Melinda McMillan, Exhibit R5, MM-13 (p.25) 
194 PN2129








[2018] FWC 2398

35

[155] Esso contended that Mr Gelagotis initiated a decision–making process at the 
communications meeting that led to Mr S.P. being excluded from the lunchroom, and took 
active measures after the meeting to secure this outcome. It submitted that Mr Gelagotis knew 
this would be hurtful to Mr S.P., and that the reason for his actions was that Mr S.P. had 
accepted employment with UGL. It said that this contravened its policy and constituted a 
valid reason for dismissal.

[156] Mr Gelagotis acknowledged that he raised the use by contractors of the lunchroom at 
the communications meeting on 15 June 2017, and that this matter also concerned Mr S.P.’s 
use of the lunchroom.195 In this sense, it can be accepted that he ‘initiated’ a discussion about 
Mr S.P. being asked to leave the lunchroom. In addition, after that discussion, Mr Gelagotis 
took further action to bring about Mr S.P. being asked not to use the lunchroom.

[157] Mr Gelagotis said in his witness statement that it was suggested during the 
communications meeting that Mr Lyndon, Mr S.P.’s friend, should talk to Mr S.P. about not 
using the lunchroom.196 He appeared to suggest that he had a conversation with Mr Lyndon 
about this at the communications meeting, but conceded in cross-examination that in fact he 
had this discussion with Mr Lyndon after the communications meeting.197 Following the 
discussion between Mr Gelagotis and Mr Lyndon, Mr Lyndon spoke with Mr S.P. and asked
him not to eat his lunch in the lunchroom ‘while all this shit’s going on’.198

[158] According to the evidence of Mr Matt Taylor, Esso’s mechanical supervisor, Mr S.P. 
came into his office and told him that Mr Lyndon had asked him not to eat his lunch in the 
lunchroom.199 Mr Taylor said that Mr S.P. was very upset. He asked Mr S.P. if he wanted to 
make a complaint, to which Mr S.P. said no, and that if he made a formal complaint, it would 
make matters more difficult.200 Mr Taylor recounted in his statement various discussions with 
Mr S.P. that occurred in June and July 2017, in which Mr S.P. spoke of his difficulties in 
dealing with Esso employees, including Mr Gelagotis.201 The evidence of Mr S.P. and Mrs 
S.P. also deals with these issues. I do not place weight on this evidence, as it has not been 
adequately tested. Mr Taylor’s impression was that Mr S.P. was struggling to cope with the 
contract handover from UGLK to UGL.202 He said consideration was given to having Mr S.P. 
employed through an entity other than UGL in order to take pressure off him.203 On 13 July 
2017 Mr S.P. went on leave. He returned to work on 2 August 2017. Since 7 August 2017 Mr 
S.P. has been on sick leave. 

Mr Gelagotis’ reasons for seeking to exclude Mr S.P.

[159] The evidence establishes that Mr Gelagotis did not believe Mr S.P. should use the 
lunchroom and took action to achieve this outcome. However, Mr Gelagotis contends that he 
had legitimate reasons for raising the issue about Mr S.P.’s presence in the lunchroom and 

                                               
195 Applicants’ final submissions dated 27 February 2018 at paragraph 110
196 Statement of Michael Gelagotis, Exhibit A6 at paragraph 13
197 PN1771-PN1774
198 PN2563
199 Statement of Matt Taylor, Exhibit R16 at paragraph 14
200 Statement of Matt Taylor, Exhibit R16 at paragraph 20
201 Statement of Matt Taylor, Exhibit R16 at paragraph 22
202 Statement of Matt Taylor, Exhibit R16 at paragraph 27
203 Statement of Matt Taylor, Exhibit R16 at paragraph 27








[2018] FWC 2398

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taking the subsequent steps he did. In Mr Gelagotis’ reply statement filed before the 
commencement of proceedings, he set out the reasons for his actions as follows: 

‘(a) Firstly, I had heard [Mr S.P.] make threatening statements and I didn’t want 
something bad happening. I believed that if [Mr S.P.] kept eating in the maintenance 
lunchroom, it would turn nasty or he could end up in a physical fight with someone. 

(b) Secondly, the maintenance lunchroom is where Esso maintenance workers speak 
about important things. There is often discussion of the current disputes and views are 
exchanged about the claims made by the Unions in EBA bargaining with Esso, as well 
as the position of Esso. These things concern our interests as Esso workers. We should 
be able to have these discussions freely in the space that has given to meet on our 
break. [Mr S.P.], as I detailed in my first statement, had made it clear that he didn’t 
support the unions or Esso workers. As I have said, the industrial situation was tense. 
If he made statements like that in the lunch room, there may have been conflict. I was 
an occupational health and safety representative. I thought it was my responsibility to 
avoid such situations if I could. 

(c) Thirdly, two former apprentices were also required to leave the lunchroom earlier 
in the year on the basis of them being contractors. I believed if it was fair for them, 
then it should apply to all contractors, including [Mr S.P.].’204

[160] Before considering Mr Gelagotis’ stated reasons for seeking to have Mr S.P. asked not 
to use the lunchroom, I make some observations about Mr Gelagotis’ evidence. 

[161] Mr Gelagotis was not an impressive witness. First, his evidence was inconsistent. At 
the outset of these reasons, I noted that the direct evidence from the applicants in these 
matters derived from four principal sources. In the course of providing answers to questions 
about the same events on multiple occasions, it is perhaps understandable that there should be 
some differences in the answers provided; however, some of the variations in Mr Gelagotis’ 
evidence have been significant. For example, Mr Gelagotis did not raise in his interview with 
Esso that Mr S.P.’s ‘threats’ were a reason for his seeking to exclude Mr S.P. from the 
lunchroom. Later, he said this was his ‘main’ reason.205Further, Mr Gelagotis told Esso in his
interview that he had heard Mr S.P. say that if Esso workers had a problem with him, he
would meet them out the front; but that he could not remember who Mr S.P. was talking to at 
the time.206 Then under cross-examination, for the first time, he said that he had heard Mr S.P.
say this to Mr Lyndon and Mr Small.207 However, those witnesses said nothing about it. I 
address other inconsistencies further below.

[162] Secondly, I found a number of Mr Gelagotis’ answers to be evasive, lacking in 
candour, or given warily with an eye to forensic advantage or risk. For example, in relation to 
his position as a health and safety representative, the following question was put to him, with 
reference to the proposition that Mr S.P. posed a safety risk:

                                               
204 Statement of Michael Gelagotis in reply, Exhibit A7 at paragraph 31
205 Statement of Michael Gelagotis, Exhibit A6, at paragraph 16 
206 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.15)
207 PN1828-PN1832








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“And presumably you understood your responsibilities included to report an unsafe 
situation to your employer? --- Yes, yes. Not fully, no. I can’t say that I did, no.”208

[163] Further, Mr Gelagotis was asked when he first found out that his union took the 
position that, if a person accepted a UGL contract, that person was a ‘sell out’. He replied that 
he had not known of this position at all until the day of his evidence.209 Later however, he 
acknowledged in cross-examination that by the time he became aware that Mr S.P. had signed 
a UGL contract, Mr Gelagotis knew that his union took the position that Mr S.P. should not 
be signing up;210 and that the inflatable rat was directed at UGL employees, that it was 
designed to send a message to them, and that his union labelled UGL employees ‘scabs’.211

On one view, the answer to the first question might quibble with what exactly constitutes a 
‘sell out’. At the least, it is not a candid answer, in light of his subsequent responses.

[164] Thirdly, some of Mr Gelagotis’ answers displayed an improbable naivety. For 
example, Mr Gelagotis said that, although he knew about the union organising a rally in 
Melbourne on 20 June 2017, he did not know what it was about.212 As for the walk off at 
Longford on the same day, for which he and others received a warning letter from Esso, Mr 
Gelagotis said that he did not know the reason for it.213 He denied any knowledge that the 
walk off and rally were in support of a position against UGL.214 He agreed with a rhetorical 
proposition that he simply walked off because the union wanted him to.215 It seems 
implausible to me that Mr Gelagotis did not have some understanding of these matters.

[165] Further, under cross-examination Mr Gelagotis repeatedly said that he did not know 
the name of the large inflatable rat that stood on the protest line in the middle of last year.216

As to whether Mr Gelagotis had seen the sign that said ‘Don’t be scabby the rat’, he gave 
conflicting answers – first that he had seen it, then that he had not seen it.217 In a photograph 
tendered in evidence to the Commission, the sign is immediately next to the rat. It is possible 
that Mr Gelagotis was looking at the tendered picture of the rat and the sign when he gave his 
first answer. However, I find it difficult to accept that Mr Gelagotis did not know the name of 
the rat, and had not seen the prominent sign which referred to it, both of which were on the 
protest line that he drove past every day.218

[166] Another instance of Mr Gelagotis’ professed but improbable lack of knowledge 
concerned the ‘employee of the day sign’. Mr Gelagotis acknowledged that he had seen it. But 
when it was put to him in cross-examination that he knew the sign referred to a UGL 
employee, Mr Gelagotis said ‘no’.219 When asked who else the sign could possibly refer to -

                                               
208 PN1293
209 PN1454
210 PN1484
211 PN2023-PN2025
212 PN1959
213 PN1961
214 PN1964
215 PN1966
216 PN1994-PN2004
217 PN1997-1998; PN2008
218 PN1986
219 PN2016








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clearly not an Esso employee - Mr Gelagotis agreed, but said now that he did not know who 
the employee was. He then conceded that he did know that the sign related to an employee 
who had come back to work for UGL.220

[167] I do not make global credit findings in relation to Mr Gelagotis’ evidence. The fact 
that I consider many of his answers to be unsatisfactory and unreliable does not mean that I 
necessarily reject his answers in respect of other matters. The fact that he has given 
unsatisfactory answers in relation to his knowledge of the industrial situation at Longford is a 
matter that can be taken into account in considering the credibility of his evidence about his 
motivations for initiating the exclusion of Mr S.P. from the lunchroom. However, I will focus 
attention on Mr Gelagotis’ evidence about his motivations (some of the matters I have 
referred to above relate directly to these motivations), and on the other evidence that is 
relevant to his stated or actual motivations.

Mr Gelagotis’ ‘safety’ reason

[168] In his final submissions, Mr Gelagotis contended that his ‘main motivation’ for 
seeking to have Mr S.P. excluded from the lunchroom was a concern that he held about 
threats he had heard Mr S.P. make, and that he did not want ‘something bad happening’.221 It 
is necessary to consider the alleged ‘threats’ made by Mr S.P. 

[169] Mr Gelagotis gave evidence that Mr S.P. had said that he did not care about the 
unions, he did not care about Esso workers, and that ‘if they have got a problem I’ll meet 
them outside the gate and we’ll sort it out there.’222 Mr Gelagotis said that he was concerned 
that if Mr S.P. remained in the lunchroom, given the tension in the workplace, there could be 
violence.223 He pointed to Mr Lyndon’s evidence: 

“My own observations of [Mr S.P.] were that he was like a firecracker ready to go. He 
had told me at least two or three times over the previous 12 months that he wanted to 
drag blokes across the counter at the tool store so I understood why people would be 
cautious of him.”224

[170] Mr Gelagotis contended that Mr Taylor’s evidence was consistent with this assessment 
of Mr S.P. Mr Taylor gave evidence of when Mr S.P. came into his office and told him that
Mr Lyndon had asked him not to use the lunchroom: 

“[Mr S.P.] was extremely upset and said comments to the effect that "I thought these 
guys were my friends" and "I want to punch someone." I was really concerned that 
[Mr S.P.] would do something he regretted so I told [Mr S.P.] to close the tool store 
and go home for the rest of the day.”225

                                               
220 PN2020
221 Applicants’ final written submissions dated 27 February 2018 at paragraph 115; Statement of Michael Gelagotis, Exhibit 

A6 at paragraph 16
222 Statement of Michael Gelagotis, Exhibit A6 at paragraph 16
223 Statement of Michael Gelagotis, Exhibit A6 at paragraph 15
224 Statement of Mr Robert Lyndon, Exhibit A8, paragraph 10
225 Statement of Matt Taylor, Exhibit R16 at paragraph 15








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[171] Mr Taylor said in his interview with Esso that despite being told by Mr S.P. that those 
who were ignoring him ‘haven’t done nothing’,226 Mr S.P. got stressed out, and that Mr 
Taylor gave him time off: 

“[Mr S.P.]'s got a pretty short fuse, he'd say something that he probably shouldn't say. 
So everyone knows [Mr S.P.]'s got a short fuse.”227

[172] Mr Gelagotis contends that this evidence corresponds with Mr Lyndon’s evidence that 
Mr S.P. was ‘sent home’ three or so times for aggressive behaviour.228

[173] In his interview with Esso, Mr S.P. denied saying to anyone that, if they had a problem 
with him, ‘they should take it outside the gate’. He said that he might have mentioned to a 
supervisor that, ‘back in the day’, they would ‘sort it out like men’.229

[174] There is no clear evidence as to whom Mr S.P. made the comments alleged by Mr 
Gelagotis. Mr Gelagotis told Esso that he had been in front of the tool store, where Mr S.P.
worked, when he heard Mr S.P. make these remarks. As already noted, in his interview with 
Esso, Mr Gelagotis could not recall who Mr S.P. made the comments to. In cross-
examination, when asked if he could name one person to whom Mr S.P. made these 
comments, he immediately identified Shane Small and Robert Lyndon.230 But Mr Small and 
Mr Lyndon made no reference to this in their evidence. As well as not originally mentioning 
their names to Esso, Mr Gelagotis did not refer to them in his first statement, or his reply 
statement. I find Mr Gelagotis’ evidence on this matter unreliable.

[175] Mr Lyndon said that he had heard Mr S.P. say several times over the previous 12 
months that he wanted to ‘drag blokes across the counter’.231 Again, he does not say who Mr 
S.P. said this to or about – or indeed what might have prompted Mr S.P. to say such a thing. I 
would note that in my assessment, Mr Lyndon coloured his evidence about Mr S.P. by 
remarking that Mr S.P. had been ‘sent home’ three or so times for aggressive behaviour. 
There is no evidence of aggressive behaviour; the evidence, such as it is, concerns aggressive 
comments. Further, to say that he was ‘sent home’ for aggressive behaviour suggests Mr S.P.
was subject to a disciplinary response. There is no evidence of this. Mr Lyndon also said that 
there was a ‘very big risk of conflict’ involving Mr S.P.232 Yet Mr Lyndon had not previously 
raised this ‘big risk’ with anyone. And he acknowledged that he was aware that employees 
should report safety risks.233

[176] Nevertheless, based on the evidence of Mr Taylor, Mr Lyndon, and Mr S.P. himself,234

it can be concluded that Mr S.P. made statements that were or could be considered aggressive.
It is not established that he made such statements directly to Esso workers. In my view, if Mr 
S.P. had said to Esso employees directly words to the effect of ‘if you have a problem with 

                                               
226 Statement of Matt Taylor, Exhibit R16 at MT-2 (p.23)
227 Statement of Matt Taylor, Exhibit R16 at MT-2 (p.35)
228 PN2573, PN2580
229 Statement of Melinda McMillan, Exhibit R5 at MM-13 (p. 38)
230 PN1828
231 Statement of Robert Lyndon, Exhibit A8 at paragraph 10
232 PN2541
233 PN2268
234 This is an instance of where I place some reliance on Mr S.P.’s evidence








[2018] FWC 2398

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me, let’s take it out the front’, it is likely to have been the subject of some controversy. I 
consider it likely that a complaint or concern of some kind would have been raised by the 
Esso employee in question. 

[177] Mr S.P.’s denial to Esso that he spoke the words in question was in response to 
whether he said the words ‘to anyone’. The context of the question asked of Mr S.P. in the 
interview with Esso suggested that the allegation was that he made the remarks directly to 
those whom he proposed to ‘take out the front’. Mr S.P. did not deny, because he was not 
specifically asked, making the alleged comments to a third party; and indeed he 
acknowledged making a similar remark to a supervisor. Despite Mr Gelagotis’ unsatisfactory 
evidence about whom Mr S.P. might have made the remarks to, it does not necessarily follow 
that he is making the entire thing up. I accept that Mr Gelagotis heard Mr S.P. make 
comments along the lines alleged, but not that they were spoken directly to a person whom he 
might ‘meet out the front.’ 

[178] What did Mr Gelagotis understand to be the import of Mr S.P.’s remarks? This is to be 
considered objectively, and in the light of Mr Gelagotis’ reaction to the remarks. 

[179] It does not appear to me that the statements of Mr S.P. constituted a credible threat of 
violence or posed any real risk of a situation arising that might lead to violence. I have found 
that the comments were not threats directed at those to whom they may have related. As with 
the comments referred to by Mr Lyndon and Mr Taylor, they reflected a person venting his 
spleen, not someone engaging in a direct altercation with people. There is no evidence before 
the Commission, or allegation, that Mr S.P. directly threatened anyone, let alone engaged in 
any aggressive behaviour. The fact that he may have been angry (presumably about his 
treatment at the hands of others) and complained about it in colourful language to third 
persons does not to my mind present a risk of violence. Further, I would also not conclude 
from the formulation ‘we'll sort it out outside the front gate’ that a physical altercation is 
implied. It has in mind addressing the matter in some way after work, rather than at work. 

[180] Further, Mr Gelagotis did not report the remarks, although he was a health and safety 
representative. He did not immediately tell others about it. In short, he did not act in a way 
that suggested that he himself regarded the remarks as posing a safety risk. In my view Mr 
Gelagotis’ evidence of his motivations is not credible. My conclusion in this regard is 
reinforced by my assessment that Mr Gelagotis’ evidence of what he said during the 
communications meeting is itself not credible, as I will now explain. 

[181] In his first witness statement filed in the proceedings, Mr Gelagotis stated that, when 
he participated in the interview with Esso in September 2017, he was very nervous, and that 
his anxiety ‘got in the way’, such that certain clarifications were required in respect of his 
answers to Esso. 

[182] During the interview with Esso in September, Mr Gelagotis said that at a certain point 
during the communications meeting ‘an issue was raised about, well, they [evidently, the two 
apprentices] can’t have lunch with us and youse are picking them out then we shouldn’t have 
[Mr S.P.] in the lunchroom’.235 Mr Zvirbulus then asked Mr Gelagotis ‘Do you know who 
raised that?’ Mr Gelagotis replied ‘No, I don’t, no … to the best of my knowledge, no I don’t 
but, I know for a fact that in our meeting that were in there … there was a motion, there was 

                                               
235 Statement of Melinda McMillan, Exhibit R5, MM-11 at p.12








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something that was granted …’236 Later, in his witness statement, Mr Gelagotis endeavoured 
to explain that he had thought Mr Zvirbulis was asking him about who had raised the issue of
the apprentices being in the lunchroom at the communications meeting in early 2017.237 This 
is not how I would have understood Mr Zvirbulis’ question. He was asking who raised the 
motion. However, perhaps somewhat charitably, I am prepared to accept that nerves might 
have ‘got in the way’, as Mr Gelagotis said. 

[183] Mr Gelagotis said in his witness statement that what he had not mentioned in the 
interview with Esso was that he had spoken at the communications meeting of his concerns 
about Mr S.P., namely that ‘in the current environment, with [S.P.] and the EBA, I don’t think 
it’s a good idea for him to sit in here, it could turn to violence.’238 This seems to me to have 
been a very significant omission. 

[184] Further, in cross-examination, Mr Gelagotis was very clear that at the communications 
meeting, he used the word ‘violence’. The following exchange occurred:

“I don't think it's a good idea for him to sit in here.  It could turn to violence.

Yes.

Did you use the word "violence"?   Yes.

You remember using the word "violent"?   Yes.

You're absolutely sure of that?   Yes.  I reckon, yes.

That is [Mr S.P.] being violent, and this was something you didn't tell the company?   
Yes.

Right.  Mr [S.P] - I'm sorry, Mr Gelagotis, you're not telling the truth, are you?   Yes, I 
am telling the truth, mate, yes.”239

[185] No other witnesses recalled Mr Gelagotis using word ‘violence’ at the 
communications meeting. In particular, Mr Hatwell was asked in cross-examination if he 
recalled Mr Gelagotis saying at the communications meeting that having Mr S.P. in the room 
could turn to violence. He said ‘no’.240 Further, Mr McDonald’s note of the communications 
meeting says this: ‘Issue raised, contractors in lunchroom, comments around what does the 
sign say on the door’.241 This is a rather bland reference to a situation that could lead to 
violence. Surely if a risk of violence had been raised it would have been noted, or 
remembered by someone. 

[186] In my view, it is implausible that Mr Gelagotis raised a concern at the communications 
meeting about Mr S.P. being violent. It would not only have been natural for him to mention

                                               
236 Ibid
237 Statement of Michael Gelagotis, Exhibit A6 at paragraph 13
238 Statement of Michael Gelagotis, Exhibit A6 at paragraph 15
239 PN1810-1816
240 PN711
241 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10








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this to Esso during his interview; it would have been a matter of some significance, to be 
emphasised. As it was, Mr Gelagotis mentioned to Mr Zvirbulis only that he had discussed 
Mr S.P.’s alleged remarks with Mr Bennett; nothing is said of his having raised the matter at 
the meeting. If to that point in the interview Mr Gelagotis had somehow forgotten to mention 
that he had raised a concern about violence at the communications meeting, it seems likely 
that when the discussion turned to his conversation with Mr Bennett, Mr Gelagotis would 
have then told Mr Zvirbulis that he also raised the matter at the communications meeting. 
Instead, Mr Gelagotis told Mr Zvirbulis that the reason for asking Mr S.P. not to use the 
lunchroom had to do with the fairness and consistency of treatment of two apprentices who 
had been asked to leave the lunchroom six months earlier. This is a trivial matter as compared 
to a risk of violence on the part of Mr S.P. When pressed about the matter in cross-
examination, Mr Gelagotis simply said that he had ‘left that out’.242 Did he not think it was 
relevant? Or did he not mention it because it did not occur? In my view, the latter is the case. 

[187] In his evidence, Mr Gelagotis was adamant that the exclusion of Mr S.P. from the 
lunchroom was not about Mr S.P. personally. In his interview with Esso, Mr Zvirbulis asked 
Mr Gelagotis ‘so you didn’t raise your hand and say [S.P.] needs to be taken out of the 
lunchroom?’ His response was ‘No. Nope, no way, No way. We made a general comment and 
I made a general comment in the room to say [what’s the difference between the apprentices 
and Mr S.P.]’.243 Mr Gelagotis said that the ‘motion’ (however described) was about not 
having any contractors in the lunchroom. He affirmed in cross-examination that it was a 
‘blanket rule in respect of contractors’,244 not just about those who had signed with UGL.245

[188] On Mr Gelagotis’ account, his motivations had nothing to do with Mr S.P.; but on the 
other hand, they had everything to do with him, because Mr S.P. posed a risk of violence.
There is an irreconcilable tension between these positions. 

[189] Furthermore, if there had been a genuinely held concern about the risk of violence, it 
seems to me unlikely that Mr S.P. would be asked not to use the lunchroom, but for no other 
action to be taken to prevent violence. Violence could potentially occur outside the 
lunchroom. As Mr Hatwell, Mr Gelagotis and Mr Lyndon themselves acknowledged, there 
was no evidence suggesting that Mr S.P. was making threats to anyone in the lunchroom.246

Mr S.P’s aggressive statements were said to have been made in the tool store.247

[190] Further, the exclusion of Mr S.P. from the lunchroom does not seem to me to be a step 
that would necessarily minimise the risk of any apprehended conflict. If Mr S.P. was 
aggressive, an effort to exclude him might just as likely increase the risk of conflict as
minimise it. 

[191] Finally, the occupational health and safety dimension of Mr S.P.’s alleged potential for 
violence is also of significance. Esso has safety policies which require the reporting of 
situations where any worker’s safety on site is at risk.248 Mr Gelagotis was a health and safety 

                                               
242 PN1703
243 Statement of Michael Gelagotis, Exhibit A6, MG-2 (p.13)
244 PN1621
245 PN1622
246 PN824; PN1834-PN1837, PN2500-PN2502
247 PN2518
248 PN240, PN1300-PN1301








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representative and was aware of Esso’s OHS policies.249 If a safety issue had been identified 
on site, the logical and appropriate response would have been to report it. It is a condition of 
entry into the Longford site, and was a condition of Mr Gelagotis’ employment, that conduct 
of this nature is to be reported,250

[192] For the above reasons, I do not accept that Mr Gelagotis took action to have Mr S.P.
excluded from the lunchroom for genuine safety reasons. I do not believe that Mr Gelagotis 
held a genuine concern that Mr S.P. might be violent or otherwise posed a safety risk. 

Mr Gelagotis’ second and third reasons for excluding Mr S.P. from the lunchroom

[193] Mr Gelagotis’ second motivation for seeking to exclude Mr S.P. from the lunchroom 
was that this is where Esso maintenance workers speak about important things, such as 
current disputes and claims made by the unions in enterprise bargaining with Esso. He stated 
that such matters concerned the interests of Esso workers, who should be able to have 
discussions freely in the space that has been given to them by the company to meet during 
breaks. Mr Gelagotis stated that Mr S.P. had made it clear that he did not support the unions 
or Esso workers.

[194] I accept that there might be important matters of union or Esso business to which 
employees of contractors should not be privy. Although there was no current enterprise 
bargaining involving Esso maintenance employees, given that the Onshore Agreement had 
recently been struck, it is reasonable to assume that there are other workplace matters 
affecting Esso employees which they may wish to discuss privately, without the presence of 
employees of contractors. Issues for discussion might well include, and indeed have included, 
issues related to UGL.251

[195] However, if this was a genuine reason for having Mr S.P. not use the lunchroom, why 
had it not been raised before? Further, why would this require him to be completely excluded? 
Mr Hatwell and Mr Gelagotis acknowledged in cross-examination that there had not 
previously been an issue with Mr S.P. leaving the lunchroom during a meeting, if 
requested.252 Mr S.P. could have continued to use the lunchroom, and absented himself for 
meetings, whether scheduled or impromptu, at which union business or matters concerning 
Esso employees were to be discussed. There is no reason why Mr S.P. could not have been 
asked to leave. In my opinion, Mr Gelagotis’ second reason for seeking to exclude Mr S.P. 
from the lunchroom is not credible. 

[196] Mr Gelagotis’ third stated motivation was that two former apprentices were also 
required to leave the lunchroom earlier in the year, because they were employees of
contractors. Mr Gelagotis said that he considered that, if the apprentices were asked not to use 
the lunchroom, so too should be all other contractors, including Mr S.P. However, why this 
matter should be attended to some sixth months after the event is not explained.

[197] I accept that the Esso lunchroom was for Esso employees, and contractors had been 
asked to leave in the past, however an exception to this rule had been made, in practice, for 

                                               
249 PN1300
250 PN3523, PN3526-PN3527; PN4396, PN4398
251 Statement of Michael Hatwell in reply, Exhibit A4 at MH-10
252 PN515; PN1889








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Mr S.P. For Mr Gelagotis it is then contended that Esso employees could, effectively, 
terminate the exception and apply the ‘general rule’ that only Esso employees may use the 
lunchroom; and that there are legitimate industrial reasons for this position. But why did they 
choose to do so at that particular meeting on 15 June 2017, one day after Mr McDonald’s 
message to employees about UGL? There was no convincing explanation offered by Mr 
Gelagotis as to this question of timing. It was suggested in final oral argument that the 
meeting of 15 June 2017 might have been the first opportunity to address this matter at a 
communications meeting.253 But this is not persuasive. There does not appear to be any reason 
why the matter could not have been addressed between communications meetings. 

[198] In my view, Mr Gelagotis’ third stated motivation for seeking to have Mr S.P.
excluded from the lunchroom is not convincing. I reject it.

Conclusion concerning Gelagotis’ motivations 

[199] I do not accept Mr Gelagotis’ explanation of his motivations for proposing, and 
seeking through his discussion with Mr Lyndon to procure, Mr S.P.’s exclusion from the 
lunchroom. What then was his actual motivation? 

[200] The drawing of inferences from circumstantial evidence is an everyday occurrence in 
courts, as well as in tribunals required to act judicially, such as the Commission. It is a feature 
even of the criminal courts, where the finder of fact must usually reach satisfaction beyond 
reasonable doubt. The Commission may and should draw reasonable inferences as part of its
obligation to consider relevant and probative evidence. Proof of any fact on the balance of 
probabilities can be established by circumstantial evidence; that is, by proof of primary or
intermediate facts from which the court infers a further fact.254

[201] In Bradshaw v McEwans,255 the High Court stated that inferences in civil cases may be 
drawn where the circumstances appearing in the evidence give rise to a ‘reasonable and 
definite inference’, rather than just ‘conflicting inferences of equal degrees of probability.’256

I also note that the fact-finding process is directed at the totality of the evidence,257 and that 
Briginshaw requires inferences to be reached upon a comfortable level of persuasion, 
commensurate with the gravity of what is alleged.

[202] It was contended for Mr Gelagotis that much of the circumstantial evidence relied on 
by Esso about the behaviour of the protestors, and the views apparently expressed by the 
AMWU and ETU, concerned the behaviour of others. This is true. It was not contended that 
either of the applicants had any role in the activity on the protest line. Mr Gelagotis submitted 
that the protest and union campaign material is relied on by Esso as the foundation for an 
inference supporting the conclusion that they targeted UGL contractors in the ways alleged by 
Esso; but that the Commission should reject such ‘indirect inferences’. For Mr Gelagotis, it 
was contended that this material does not assist Esso to prove the specific conduct alleged, 
and it is only useful in explaining the workplace context.258  

                                               
253 PN5541
254 United Group Resources Pty Ltd and Ors v Calabro and Ors (2011) 198 FCR 514 at [71]
255 217 ALR 1
256 Ibid at 5, per Dixon, Williams, Webb, Fullager and Kitto JJ
257 Director, FWBII v CFMEU,  (2013) 231 IR 278 at [74]
258 Applicants’ final submissions dated 27 February 2018 at paragraph 26








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[203] Of course, all inferences are in one sense ‘indirect’. If there is direct evidence on a 
particular matter in dispute, which evidence is accepted, there may be no need to draw 
inferences in relation to that matter. In the present case, Mr Gelagotis gave direct evidence as 
to his motivations in seeking to have Mr S.P. excluded from the lunchroom. I do not accept 
this evidence. Therefore, in seeking to understand what has occurred for the purposes of 
establishing whether a valid reason for dismissal exists, it is appropriate to consider whether 
inferences can be drawn as to Mr Gelagotis’ real motivation for seeking to have Mr S.P. 
excluded from the lunchroom. 

[204] In my view, the sequence of events leading up to the communications meeting 
outlined earlier in these reasons, together with the evidence of Mr Gelagotis himself, points 
clearly to a motivation related to Mr S.P.’s acceptance of a contract with UGL. It will be 
recalled that on 29 May 2017, a letter was sent jointly by the three unions to their members, 
stating that no member should be accepting employment with UGL on the current terms and 
conditions, and that to do so would be a ‘sell out’ of hard won conditions. On 9 June 2017, Mr 
S.P. signed an offer of employment with UGL.  On 14 June 2017, Mr McDonald, the AMWU 
delegate, sent an email to Esso maintenance and operations employees, including Mr Hatwell 
and Mr Gelagotis, stating that the ‘unions are not letting this slip’, that ‘a visual presence will 
come soon enough’, and that UGLK members should not sign ‘this crap deal’ that was selling 
‘25 years of hard fought conditions down the drain.’259 The communications meeting at which 
Mr Gelagotis proposed excluding Mr S.P. occurred the following day. 

[205] Mr Gelagotis acknowledged under cross-examination that he was aware by 13 or 14 
June 2017 that some UGLK employees had signed a contract with UGL and by mid-June 
knew that Mr S.P. had signed.260 He accepted that by the time he became aware that Mr S.P.
had signed the contract he knew that his union, the AMWU, was opposed to offers of 
employment from UGL which reduced terms and conditions of employment,261 and took the 
position that Mr S.P. should not have accepted employment with UGL.262

[206] Mr Gelagotis instigated the process that resulted in the exclusion of Mr S.P. He
followed this up by discussing with Mr Lyndon the task of speaking to Mr S.P. about not 
using the lunchroom. He was, as Ms Butler put it, ‘lobbying’ for a particular outcome and 
succeeded in implementing that outcome.263 In my view, the inference arises clearly that the 
reason for Mr Gelagotis seeking to exclude Mr S.P. from the lunchroom was because he had 
accepted employment with UGL. This motivation accords with his unions’ industrial 
interests, as identified in Mr McDonald’s email the day before the meeting. It is also 
consistent with Mr Hatwell’s evidence about his understanding of the concern raised by Mr 
Gelagotis at the communications meeting, namely that it was about ‘UGL contractors in our 
lunchroom’.264

[207] In the present case, a reasonable and definite inference can be drawn that Mr 
Gelagotis’ motivation for excluding Mr S.P. was the fact that he had signed a contract with 

                                               
259 Email from Frank Casella dated 14 June 2017 and email chain, Exhibit R1
260 PN1475
261 PN1403
262 PN1484, PN1486
263 PN4385-PN4388
264 PN656








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UGL. I draw this inference upon a comfortable level of persuasion as to its validity.  The 
inference is consistent with the case put against Mr Gelagotis by Esso.265

Application of the policy and the relevance of past practice 

[208] It is necessary to consider whether in light of these findings, Mr Gelagotis contravened 
Esso’s policy, and whether such a contravention constitutes a valid reason for dismissal, as 
claimed by Esso. If Mr Gelagotis’ conduct did not contravene the policy, the Commission 
should consider whether the conduct nevertheless amounts to a valid reason for termination. 

[209] It was contended for Mr Gelagotis that he could not be considered to have contravened 
Esso’s policy, which imposes a reasonable person test. First, it was contended that he acted 
for legitimate reasons. I reject this contention. For the reasons given above, I do not accept 
that there was a genuine safety risk, or that Mr Gelagotis truly believed there to be such a risk. 
The other two grounds do not provide a convincing explanation of Mr Gelagotis’ actions, and 
I do not accept his evidence that these were his motivations.

[210] Secondly, it was contended that Mr Gelagotis acted in accordance with a practice, 
endorsed by Esso, whereby employees determined who could use their lunchroom.266 Mr 
Gelagotis submitted that it was not open for Esso, or the Commission, to conclude that the 
request made of Mr S.P. at the instigation of Mr Gelagotis constituted the creation of a hostile 
work environment, contrary to the policy, and an instance of conduct designed to ignore, 
isolate or segregate contractors, given Esso’s practice to permit Esso maintenance workers to 
determine who used that room. 

[211] It is necessary to characterise the practice and consider whether Mr Gelagotis’ actions 
were consistent with it. There was evidence about the practice.267 For example, in his 
interview, Mr S.P.’s supervisor, Mr Taylor, said this of it:

‘As a general rule, the Esso lunchroom was used exclusively by Esso maintenance 
employees. There is a sign on the lunch room door which says "Esso Employees, Esso 
Maintenance Only" although people who use the lunch room have allowed long term-
contractors to have lunch in there. I recall that people have been asked to leave in the 
past on a number of different occasions. Recently some crane boom drivers were asked 
to leave because there was a momentary concern at that time about having strangers 
in the lunch room, which did not persist.’268

[212] It was contended for Mr Gelagotis that, given the existence of the practice, it is unfair 
to apply another standard as a basis for employee discipline that has the effect of limiting or 
qualifying the circumstances in which a contractor could be asked to leave the lunchroom. Mr 
Gelagotis contended that he did no more than to instigate a request of a contractor that he eat 
his lunch outside the lunchroom, consistent with the practice.269

                                               
265 See for example Respondent’s closing submissions, paragraph 134; and cross examination of Mr Gelagotis, PN 1947-

1948
266 Applicants’ final submissions dated 27 February 2018 at paragraph 111
267 See Exhibit A19, extract from the interview of the Plant Manager, David Anderson; Statement of Brendan Small, Exhibit 

A14 at paragraphs 17-20; Statement of Robert Lyndon, Exhibit A8 at paragraph 11 
268 Statement of Matt Taylor, Exhibit R16 at paragraph 16
269 Applicants’ final submissions dated 27 February 2018 at paragraph 114








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[213] I accept there was a practice whereby the lunchroom was for Esso maintenance 
employees. They could allow others to use it, but could ask those who were not Esso 
maintenance employees not to use it. However, there was no evidence of the practice of Esso 
employees deciding who could use the lunchroom being exercised in an arbitrary or 
discriminatory way. Contractors had been asked not to use the room because they were 
contractors per se, that is, not Esso employees. This is what occurred in relation to the two 
apprentices in 2017, and evidently the crane boom drivers referred to by Mr Taylor above. 
They were ‘strangers.’  However, there was no practice of excluding people because they 
were employees of a particular contractor.  

[214] It would likely have been consistent with the practice to exclude Mr S.P. from the 
lunchroom as part of a blanket removal of all contractors. This is what Mr Gelagotis says 
occurred. But I do not accept this. I have concluded above that Mr Gelagotis sought to 
exclude Mr S.P. from the lunchroom because he had signed a contract with UGL. In my view 
this was not consistent with the ‘practice’. 

[215] Esso further contended that the fact that a practice exists, and was endorsed or tacitly 
agreed to by Esso, does not mean that the exercise of any ‘right’ or custom pursuant to the 
practice is beyond censure. Esso argued that employees could not, for example, exclude 
women and invoke their customary practice to escape reproach. It contended that whatever 
practice has developed would operate subject to employees’ contracts of employment, and the 
express terms of Esso’s policies, as well as provisions of the Onshore Agreement. However, if 
a particular practice was effectively authorised by Esso, then, even if it were odious, Esso 
could not fairly discipline employees for engaging in it. 

[216] However, there is no suggestion here that Esso authorised a practice of excluding from 
the lunchroom employees of particular contractors. Further, the applicants did not contend 
that the practice was such that it would be permissible to ask Mr S.P. not to use the lunchroom 
because he had signed a UGL contract.270

[217] Mr Gelagotis’ conduct was not consistent with the ‘practice’. Did it breach Esso’s 
policy? The Commission was taken to the terms of the harassment policy in some detail. The 
Harassment in the Workplace Policy defines harassment as including ‘any inappropriate 
conduct which has the purpose or effect of … creating an intimidating, hostile or offensive 
work environment.’271 The ‘Exxon Mobil Working Together: Harassment in the Workplace 
Policy and Practices’ (Working Together Guide), elaborates on the policy, further addressing
the types of conduct that can constitute harassment. In relation to ‘hostile work environment’ 
it states:272

‘The purpose or effect of this type of harassment is to unreasonably interfere with an 
individual’s work performance or to create an intimidating or offensive work 
environment. Managers, supervisors, employees, and non-employees can create a 
hostile work environment through unwelcome offensive conduct. A “reasonable 
person” test is applied: Would the behaviour create an offensive or intimidating 
environment for a reasonable person?’

                                               
270 PN5730-PN5731
271 Statement of Kirsteen Butler, Exhibit R8, Harassment in the Workplace Policy, KB-11
272 Statement of Kirsteen Butler, Exhibit R8 at paragraph 23; KB-12 (p.52–53)








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[218] Excluding a person from the lunchroom or some other area or group is not specifically
identified as a subspecies of harassment. However in my view such conduct can fall within 
the proscription of creating a hostile working environment, depending on the circumstances. I 
note that one of the consequences of creating a hostile working environment is identified in 
the Working Together Guide as making a person feel isolated or ostracised. Whether the 
conduct might reasonably be expected to lead to such a result is relevant to the question of 
whether it offends the policy. There might also be a legitimate reason for excluding a person, 
and this too would need to be considered as part of the ‘reasonable person’ test. In the present 
case, I have concluded that there was no legitimate reason for excluding Mr S.P. from the 
lunchroom. The reason for Mr S.P.’s exclusion was that he had accepted employment with 
UGL. I also consider that it was reasonably foreseeable that he would feel isolated and 
ostracised. 

[219] Mr Gelagotis contended that Mr Lyndon was asked to approach Mr S.P. about not 
using the lunchroom in order to ensure that the message was delivered in a respectful way.273 I 
accept that Mr Gelagotis gave some consideration to the way in which Mr S.P. was asked not 
to use the lunchroom, and that asking Mr Lyndon to speak with him meant the delivery of the 
message was gentler than it might otherwise have been. But this also tends to underscore that
Mr Gelagotis knew that Mr S.P. would find his exclusion from the lunchroom hurtful. This 
was put to Mr Gelagotis in cross-examination, and his response was equivocal – ‘well, yes 
and no.’274

[220] I have considered the contention that all Mr S.P. was asked to do was not eat his lunch 
in the lunchroom until ‘this shit blows over’.275 For Mr Gelagotis it was submitted that this 
was no permanent ban, but temporary action designed to reduce the risk of conflict. Although 
I accept Mr Lyndon’s evidence about the words he used when speaking with Mr S.P., the 
effect was that Mr S.P. was banned from the lunchroom, perhaps not for ever, but indefinitely. 
Mr S.P. was excluded from a group of which he had previously been a part. 

[221] The exclusion of Mr S.P. from the lunchroom was only one dimension of his overall
‘working environment’. Further, Mr Gelagotis did not singlehandedly ‘create’ the broader 
working environment, and although he was the instigator of Mr S.P.’s exclusion from the 
lunchroom, he did not act alone: Mr Lyndon requested Mr S.P. not to use the lunchroom. 
However, the expression ‘creating a hostile working environment’ is not to be read as a term 
of art requiring an overly technical analysis. It is appropriate simply to consider the ordinary 
meaning of the words in context, in the setting of a policy document. In my view it can 
sensibly and assuredly be said that Mr Gelagotis through his actions created a hostile working 
environment for Mr S.P. Because of Mr Gelagotis’ actions, Mr S.P. was no longer welcome to 
use the room where he had habitually eaten his lunch. He was isolated and ostracised (the 
latter word means ‘excluded from a group’). 

[222] In my opinion, Mr S.P. knew the reason for his exclusion. He said in his interview 
with Esso that it was not until he signed his contract that he was ‘kicked out’ of the 
lunchroom.276 According to Mr Lyndon, when he asked Mr S.P. not to use the lunchroom, Mr 

                                               
273 PN5548, Applicants’ final submissions dated 27 February 2018 at paragraph 120
274 PN1867
275 Statement of Robert Lyndon, Exhibit A8 at paragraph 14
276 Statement of Melinda McMillan, MM13, page 32








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S.P. said that he had been expecting this.277 It would be entirely logical for a person in Mr 
S.P.’s position to draw the conclusion that the reason for his exclusion from the lunchroom 
was his decision to accept employment with UGL. Even if Mr S.P. did not know the reason, 
he was still excluded from the lunchroom for an illegitimate reason. 

[223] The policy notes that harassment will not be tolerated and states that ‘employees who 
observe or become aware of harassment should immediately advise their supervisors, higher 
management, or their designated Human Resources Department contacts’.278 As to the 
potential consequences of harassment, the policy notes that ‘all employees, including 
supervisors and managers, will be subject to disciplinary action up to and including 
termination of employment for any act of harassment’. 

[224] A breach of policy may constitute a valid reason for dismissal.279 Generally, it is 
relevant to consider whether what the policy required was reasonable. However the 
reasonableness of the policy was not in contest. For Mr Gelagotis it was contended that the 
harassment policy does not require Esso employees to be friends with one another or with 
contractors, and that Esso employees are entitled to hold and express opinions. I agree. Had 
Mr Gelagotis’ conduct been confined to such behaviour, it would not have contravened the 
policy. Had his conduct really related to a general exclusion of all contractors, it would
probably not, given the practice and the policy’s reasonable person test, have offended the 
policy.

[225] However, Mr Gelagotis’ conduct was intended to exclude Mr S.P., not because he was 
not an Esso employee (or because he was an employee of a contractor per se), but because he 
had accepted employment with a particular contractor, UGL. In the circumstances of the 
present matter, I consider that this created a hostile and intimidating work environment for Mr 
S.P., judged by the standard of a reasonable person. Mr Gelagotis’ conduct fell within the 
activity proscribed by the policy. 

[226] It was a term of Mr Gelagotis’ contract of employment that he comply with policies.280  
He had done refresher training on the contents of the Harassment Policy and Working 
Together Guide in their business practice reviews in 2016.281 Mr Gelagotis was aware that the 
policies made it clear that being harassed can make a person feel angry, frustrated, helpless or 
embarrassed, isolated, ostracised, uncomfortable or guilty282and that breaches of these policies 
are serious matters that could result in dismissal.283

[227] By initiating Mr S.P.’s exclusion from the lunchroom in these circumstances, Mr 
Gelagotis breached the policy and his contract of employment. This constituted a valid reason
for dismissal. 

                                               
277 Statement of Robert Lyndon, Exhibit A8 at paragraph 14
278 Statement of Kirsteen Butler, Exhibit R8 at KB-11
279 Woolworths Ltd (t/as Safeway) v Brown (2005) 145 IR 285, 293 - 297; B v Australian Postal Corporation (2013) 238 IR 

1, [36]; Farstad Shipping (Indian Pacific) Pty Ltd v Rust [2017] FWCFB 4738, [46]
280 Statement of Kirsteen Butler, Exhibit R8 at KB-2, KB-8
281 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 28-30, KB-13, KB-16, KB-17; Statement of Michael Hatwell in 

reply, Exhibit A4 at paragraphs 68-70; Statement of Michael Gelagotis in reply, Exhibit A7 at paragraphs 36-38; PN253, 

PN256, PN1329-PN1331
282 PN1339-PN1341
283 PN1350-PN1353








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[228] I also consider that Mr Gelagotis’ actions would have constituted a valid reason for 
dismissal even in the absence of the policy. Mr S.P. was excluded because he chose to accept 
employment with UGL. To accept such employment was his industrial right. He was not to be 
discriminated against on this basis. Others may not approve of his decision. Mr S.P. and other 
UGL employees would no doubt prefer the more generous conditions that applied at UGLK. 
However financial and personal circumstances and pressures in life may lead people to 
exercise their rights in different ways. This must be respected. 

Offensive and intimidating language towards and about employees of contractors

[229] The Commission is required to consider whether there is a valid reason for dismissal. 
In relation to Mr Gelagotis, one such reason has been established. However I will record my 
analysis of the second reason for Mr Gelagotis’ dismissal, namely that he used language such 
as ‘scab’, ‘dog’, ‘grub’ or similar language when referring to contractors. 

[230] During his interview with Esso, Mr S.P. was asked by Mr Zvirbulis if particular 
people had used the terms ‘scab or similar’; Mr Zvirbulis mentions several names. When Mr 
Gelagotis’ name is mentioned, Mr S.P. says the word ‘yep’ and nothing more.284 Mrs S.P. 
then stated that this would probably have been in the huddle out the front. Mr S.P. says 
nothing about this. Mrs S.P., in her statement that is attached to Ms Winckworth’s affidavit, 
said that Mr S.P. had told her that Mr Gelagotis and two other employees would talk about 
scabs and grubs within earshot of Mr S.P. in reference to employees of UGL. However, Mr 
S.P. had the opportunity to relate such details to Mr Zvirbulis during his interview, but said 
nothing about this. It would be unsafe to rely on Mrs S.P.’s unsworn and second-hand 
evidence on this point in such circumstances, and I do not place any weight on it.

[231] Ms Butler concluded that Mr Gelagotis had used the word ‘scab’ and similar words
based on Mr S.P.’s evidence in his interview with Esso.285 She conceded that the 
circumstances in which Mr Gelagotis was said to have done so are not apparent and Mr S.P. 
says nothing about them. She agreed that, on Mr S.P.’s account, Mr Gelagotis might only
have said the word ‘scab’ once, and that he might have said it only to other Esso employees, 
speaking about contractors rather than to them, although she noted that she would still not 
consider this acceptable.286 Ms Butler also conceded that if the only matter before her was an 
isolated example of an employee using the word ‘scab’ once, she would not terminate that 
person’s employment.287

[232] Mr Burton and Mr Hatwell both gave evidence that the word ‘scab’ was used on site 
by Esso employees and that it was used to describe UGL contractors,288 which provides some 
support for the contention that Mr Gelagotis also used the word.  However, the allegation 
against Mr Gelagotis rests largely on a bare word from Mr S.P.’s unsworn evidence. Mr 
Gelagotis denies using the language attributed to him by Esso.289 He did so under cross-
examination before the Commission on oath. Although I have found other aspects of his 

                                               
284 Statement of Melinda McMillan, Exhibit R5, MM-13 at p.22
285 PN4465-4467
286 PN4465-PN4471
287 PN4474
288 PN1163, PN1173-PN1174; PN2782
289 PN1738








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evidence to be lacking in credibility or unreliable, it does not follow that I should reject all of 
his evidence.

[233] Even if Mr Gelagotis did use such language, we know nothing of the context. Did Mr 
S.P. overhear Mr Gelagotis utter the words in hushed tones among a group of Esso employees 
speaking privately among themselves? Was it said in a raised voice outside the tool store so 
that it could be easily heard by Mr S.P.? Was it said directly to him, with an abusive 
adjective? The permutations, and the accompanying levels of seriousness, are many. None has 
been established. 

[234] The allegations against Mr Gelagotis concerning the use of the offensive and abusive 
words about or towards contractors (or specifically the use of the words ‘scab’, ‘scum’, ‘dog’
and ‘grub’ towards and about employees of contractors, as was put in the letter of allegations) 
have too fragile a foundation. I find them unsubstantiated. 

Conclusions in relation to valid reason

[235] I have concluded that there was a valid reason for the dismissal of Mr Hatwell and for 
the dismissal of Mr Gelagotis. 

[236] On the basis of the factual findings I have made above, I am satisfied on the evidence 
before me that Mr Hatwell engaged in misconduct in his treatment of Mr Flens on 31 July 
2017. This gave Esso a sound, defensible, well-founded and valid reason to dismiss 
Hatwell.290

[237] I am also satisfied that Mr Gelagotis engaged in misconduct by initiating and 
procuring the exclusion of Mr S.P. from the lunchroom, motivated by the fact that Mr S.P.
had accepted a UGL contract, and that this was a valid reason for his dismissal.

[238] Esso contended that it had a further valid reason for the applicants’ dismissals 
constituted by their dishonesty in answering questions during the company’s investigation. In 
light of my conclusions above, it is not necessary for me to address this contention. 

[239] For the purposes of establishing a valid reason in the context of s.387(a), it is not 
necessary to demonstrate misconduct sufficiently serious to justify summary dismissal.291 The 
seriousness of the conduct, and the proportionality of the decision to dismiss Mr Hatwell and 
Mr Gelagotis and to do so summarily, are matters I shall consider further below in the context 
of s.387(h). 

[240] I will also address the question of whether the conduct of each applicant amounted to 
serious misconduct for the purposes of clause 22 of the Onshore Agreement and whether Esso 
breached clause 22 in the course of my consideration of s.387(h). Also in that context I 
address the significance of the fact that some of Esso’s grounds for termination of 
employment have been found to be unsubstantiated. 

[241] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust 
or unreasonable (s.385(b)). In considering whether it is so satisfied, the Commission must 

                                               
290 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
291 Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033 At 32








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take into account the matters specified in s.387. Having considered the question of whether 
there were valid reasons for dismissal, I will now address each of the remaining matters in 
turn below. 

Notification of reasons for dismissal and opportunity to respond (s.387(b) and (c))

[242] The Commission must take into account whether an employee has been notified of the 
reasons for dismissal and whether the person was afforded an opportunity to respond to any 
reason related to their conduct or performance. 

[243] In order to tell against a finding that the dismissal was unfair, notification of the reason 
for dismissal should occur before the decision to dismiss is made292 and be made in explicit, 
plain and clear terms.293 The question of whether an employee had an opportunity to respond 
to reasons relating to conduct or performance should be understood in a common sense way; 
the focus of the consideration is whether the employee is treated fairly, rather than on any 
formality.294

[244] It was not seriously disputed that Esso notified the applicants of the reasons for 
dismissal. The letters provided to Mr Hatwell and Mr Gelagotis on 17 October 2017 set out 
the allegations against them. The reasons for their dismissal were notified to them in the 
termination letters of 30 October 2017.

[245] I have considered whether the generality of some of the reasons for dismissal affects 
the question of whether Mr Hatwell and Mr Gelagotis were properly notified of the reasons 
for dismissal. However, the reasons which I have found to be valid reasons for dismissal were 
specifically identified. Mr Gelagotis’ letter referred in particular to his initiating discussions to 
have Mr S.P. excluded from the lunchroom. Mr Hatwell’s letter identified the abusive 
language he used towards Mr Flens. I am satisfied that they were notified of the reasons for 
their dismissal. 

[246] The evidence referred to above also establishes that Esso afforded Mr Hatwell and Mr 
Gelagotis an opportunity to respond to reasons for dismissal related to their conduct. They 
both received letters setting out the allegations against them. Again, I have considered 
whether the generality of some of these allegations affects the question of whether they were 
afforded an opportunity to respond. I take note of the fact that Esso’s investigation into the 
applicants’ treatment of Mr S.P. was protracted, and that for quite some time little detail was 
provided to the applicants about what they were suspected of having done. This is a matter 
that I will consider in relation to s.387(h) (‘any other matters the Commission considers 
relevant’). For the purposes of s.387(c), I am satisfied that Mr Hatwell and Mr Gelagotis were 
afforded an opportunity to respond to reasons for their dismissal related to their conduct, and 
that this opportunity was reasonable. 

[247] Finally, as I discuss further below in relation to s.387(h), the applicants advanced a 
contention that Esso did not comply with the disciplinary procedure in clause 22 of the 
Onshore Agreement, and that this rendered the dismissal harsh, unjust or unreasonable. They 

                                               
292 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]
293 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151; Previsic v Australian Quarantine Inspection Services 

Print Q3730
294 RMIT v Asher (2010) 194 IR 1 at 14-15








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did not separately contend that failure to comply with the procedure resulted in a denial of 
procedural fairness; nevertheless, failure to follow such a procedure could affect the adequacy 
of an employee’s opportunity to respond to reasons for dismissal. However, as I will explain 
below, I do not consider that Esso did breach clause 22 of the Onshore Agreement. 

Unreasonable refusal to allow a support person present (s.387(d))?

[248] The Act directs the Commission to take into account whether there was any 
unreasonable refusal by the employer to allow a person to have a support person present to 
assist at any discussions relating to dismissal. It was not contended that Esso had refused to 
allow the applicants to have a support person present. Each was accompanied by a union 
representative during the interviews with Esso.  

Warning about unsatisfactory performance before the dismissal (s.387(e))

[249] If a dismissal relates to unsatisfactory performance, s.387 requires the Commission to 
consider whether the person has been warned about the unsatisfactory performance prior to 
dismissal. The submissions do not advance any contention in relation to this consideration.
The valid reasons for dismissal that I have found to exist in the present matter relate to 
conduct. There is not always a clear dividing line between misconduct and poor performance 
however no issue of the latter arises in the present cases. It was not necessary for Esso to have 
warned the applicants prior to their dismissals. 

Size of the enterprise and dedicated human resources (s.387(f) and (g))

[250] The Commission is required to consider the degree to which the size of the employer’s 
enterprise, and the degree to which the absence of dedicated human resources specialists or 
expertise in the enterprise, would be likely to impact on the procedures followed in effecting 
the dismissal.

[251] No submissions were made as to the relevance of these considerations in the present 
matter. Clearly Esso is an organisation with considerable resources, including dedicated 
human resources specialists, some of whom gave evidence at the hearing. The size of the 
employer’s enterprise would have no adverse impact on the procedures followed in effecting 
dismissal. One would expect that allegations of misconduct would be extensively 
investigated, as was the case here. There was no ‘absence of dedicated human resources 
person’ and accordingly the consideration in s.387(g) has no application.  

Any other matters the Commission considers relevant (s.387(h))

[252] In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the Commission is to take into account any other matters that it considers 
relevant. 

[253] It is well accepted that a dismissal may be harsh, unjust or unreasonable despite the 
existence of a valid reason for the dismissal. In B v Australian Postal Corporation295 the Full 
Bench stated that: 

                                               
295 (2013) 238 IR 1








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“That principle reflects the approach of the High Court in Victoria v Commonwealth 
and is a consequence of the reality that in any given case there may be “relevant 
matters” that do not bear upon whether there was a “valid reason” for the dismissal 
but do bear upon whether the dismissal was “harsh, unjust or unreasonable.”296

[254] The Full Bench continued: 

“Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is 
harsh, unjust or unreasonable fall into three broad categories: 

(1) The acts or omissions that constitute the alleged misconduct on which 
the employer relied (together with the employee’s disciplinary history and any 
warnings, if relied upon by the employer at the time of dismissal) but otherwise 
considered in isolation from the broader context in which those acts or 
omissions occurred. 

(2) The broader context in the workplace in which those acts or omissions 
occurred. (This may include such matters as a history of toleration or 
condonation of the misconduct by the employer or inconsistent treatment of 
other employees guilty of the same misconduct). 

(3) The personal or private circumstances of the employee that bear upon 
the substantive fairness of the dismissal. (This includes matters such as the 
length of service, the absence of any disciplinary history and the harshness of 
the consequences of dismissal for the employee and his or her dependents).”297

[255] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively,298

however relevant factors that can be taken into account in determining harshness clearly 
include matters personal to the employee.299 Further, the failure of an employee to comply 
with the policies and procedures of an employer (which may found a valid reason to dismiss) 
does not prevent the Commission from finding that the dismissal was harsh, unjust or 
unreasonable.300

Industrial context

[256] For the applicants, it was contended that the broader industrial context is particularly 
relevant to the question of harshness.301 They submitted that the industrial disputation 
associated with what they describe as UGL’s decision to dismiss its workforce and then offer 
re-employment by a subsidiary company on lower rates of pay is ‘dividing the workplace and 
the broader community’.302 I agree that it is quite apparent from the evidence that the 

                                               
296 Ibid at [41]
297 At [42]
298 Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 

20, 28 
299 See B v Australian Postal Corporation (2013) 238 IR 1, [43]-[46]; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 

467; Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28 
300 B v Australian Postal Corporation (2013) 238 IR 1 at [48]
301 Applicants’ final submissions dated 27 February 2018 at paragraphs 127-130
302 Ibid at paragraph 127








[2018] FWC 2398

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circumstances surrounding UGL’s employment arrangements have resulted in significant
tension in the workplace and, it would appear, the local community. 

[257] However, the applicants claimed that they did not engage in the conduct alleged 
against them. While some of the conduct of which they were accused is unsubstantiated, I 
have found that Mr Hatwell abused Mr Flens in the manner alleged and that Mr Gelagotis 
initiated the exclusion of Mr S.P. from the lunchroom because he had accepted employment 
with UGL, in breach of Esso’s policy. In those circumstances, it is difficult to see how the 
broader industrial circumstances weigh in favour of a conclusion that the dismissal of either 
applicant was harsh, or unjust or unreasonable.

[258] Submissions as to mitigation by reference to the industrial context might have been 
more compelling if the conduct had been admitted and regretted, but explained in some 
particular way by reason of the context. It might perhaps have been said that the heightened 
tensions on site led Mr Hatwell and Mr Gelagotis to do things they might not otherwise have 
done. But this is not what the applicants say occurred. They denied the conduct which I have 
found to have occurred. The submission then as to the relevance of the industrial situation for 
the consideration of whether the dismissals were harsh appears to contend that, although the 
conduct is denied, should it be found that the conduct did occur, the Commission ought to 
consider that the conduct may be wholly or partly explainable by the industrial context, or that 
the context is otherwise mitigating. But because they denied the conduct, the applicants did 
not explain how their actions were affected by the circumstances and why this is a mitigating 
factor.

[259] I agree with the applicants’ submission that the industrial situation was a material 
change in the applicants’ normal working arrangement. However, in the circumstances I do 
not consider that it weighs in favour of a conclusion that the dismissal of Mr Hatwell or Mr 
Gelagotis was harsh, or unjust or unreasonable. 

Personal relationships and opinions

[260] The applicants contend, and I agree, that Esso’s policy is not a source of any 
obligation on the part of Esso employees to be friends with each other or with employees of
contractors. Aside from questions of proper workplace behaviour and matters concerning the 
performance of work, the company does not purport to have any role in regulating personal 
relationships. However, I have not found that there was any conduct on the part of the 
applicants to ignore contractors as alleged by Esso. Rather, I have found that Mr Hatwell 
abused Mr Flens, and Gelagotis initiated Mr S.P.’s exclusion from the lunchroom because he 
had accepted employment with UGL. There is no question in this connection of the applicants 
simply not wanting to be friends with Mr Flens and Mr S.P. 

[261] I also agree with the applicants that Esso employees are fully entitled to hold and 
express opinions on subjects of industrial concern and to disagree with the industrial actions 
of others, and that this may affect personal relations between those individuals. However, the 
conduct of Mr Hatwell and Mr Gelagotis was not confined to expressing opinions.  

A single act

[262] The valid reasons that I have found to exist in relation to the dismissal of Mr Hatwell 
and of Mr Gelagotis concern what might be described as single acts or events, rather than a 








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course of conduct. The applicants referred in their submissions to the observations of Lord 
Maugham in Jupiter General Insurance v Shroff,303 where His Lordship said: 

‘On the one hand, it can be in exceptional circumstances only that an employer is 
acting properly in summarily dismissing an employee on his committing a single act of 
negligence; on the other, their Lordships would be very loath to assent to the view that 
a single outbreak of bad temper, accompanied, it may be, with regrettable language, is 
a sufficient ground for dismissal. Sir John Beaumont C.J., was stating a proposition of
mere good sense when he observed that in such cases one must apply the standards of 
men, and not those of angels.'304

[263] Whatever may have been the position in decades past, I do not agree that today a 
single ‘outbreak of bad temper’ or other misconduct should not be sufficient grounds for 
dismissal. Each case must be assessed on its merits, taking into account all of the 
circumstances. Furthermore, in my opinion, appropriate standards of workplace behaviour in 
contemporary Australia would not readily accept ‘regrettable language’, ‘bad temper’ or other 
conduct in the workplace that entails abuse or exclusion of others. Such conduct can put 
workplace health and safety at risk and compromise the wellbeing of others. These 
considerations do not apply the standards of ‘angels’, but simply the standards of a modern 
workplace in which people are treated with respect. 

[264] The significance of workplace safety and wellbeing is also apparent in the 
considerations which the Act requires the Commission to take into account in assessing 
whether a dismissal was harsh, unjust or unreasonable. Whether there was a ‘valid reason for 
dismissal related to a person’s capacity or conduct’ is expressed to include consideration of 
‘its effect on the safety and welfare of other employees’. I would read the reference to 
‘employees’ as including employees of other employers, such as contractors. In any event, I 
consider the safety and well-being of employees of contractors to be a consideration to be 
taken into account under s.387(h). 

The impact on Mr Flens and Mr S.P.

[265] In my view, the conduct that I have found occurred, and that constituted a valid reason 
for dismissal of each of the two applicants in these matters, had an adverse impact on Mr 
Flens and Mr S.P. The evidence did not establish exactly what this effect was. However, as 
noted above, in the course of Mr Flens’ evidence, he turned to me and said ‘I was told I was a
fucking scab’305 It was plain to me from Mr Flens’ tone of voice and demeanour that he found 
this very upsetting. 

[266] As to Mr S.P., it is clear that he was distressed by having been excluded from the 
lunchroom. So much is apparent from Mr Taylor’s evidence about Mr S.P.’s reaction, and the 
comments made by Mr S.P. in his interview with Ms McMillan and Mr Zvirbulus.306 In this 
connection, I note that Mr S.P. said in his interview with Esso that it was not long after he was 
excluded from the lunchroom that he had a breakdown.307

                                               
303 [1937] 3 All E.R. 67
304 Ibid at 74
305 PN4840-PN4842
306 Statement of Matt Taylor, Exhibit R16 at MT-2 (p.14); Statement of Melinda McMillan, Exhibit R5 at MM-13 (p.30)
307 Statement of Melinda McMillan, Exhibit R5 at MM-13 (p.6) 








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[267] On 7 August 2017, Mr S.P. attempted to take his own life, leaving the note referred to 
earlier. I wish to make clear that the evidence does not establish a causative link between Mr 
S.P.’s exclusion from the lunchroom and this unfortunate event. Mrs S.P. believed there was 
such a link, and no doubt this possibility has weighed on the minds of Mr Gelagotis and 
others. In the course of his evidence, Mr Gelagotis stated: 

‘You think we're all happy about what's happened to [Mr S.P.], as a human being? No. 
You think I'm happy with what's going on? No. This was never any of my intention 
from day one. You think that I wanted it to get to this point? No chance.’308

[268] I accept this evidence. It was not suggested, nor do I believe, that Mr Gelagotis or 
anyone else would have wished for or foreseen what occurred on 7 August 2017. However, 
one reason for having norms of behaviour such as harassment policies is that it reduces the 
risk of harm to people in the workplace, including harm that might be difficult to foresee. 

Inconsistent treatment?

[269] The applicants also contended that Esso acted inconsistently by dismissing Mr Hatwell 
and Mr Gelagotis, but taking lesser disciplinary action against Mr Osborn, Mr Burton and Mr 
Moody.309 These employees received final written warning letters for engaging in misconduct 
in breach of Esso’s harassment policy. However, I do not consider that the conduct of Mr 
Hatwell and Mr Gelagotis is comparable to that of the other mentioned employees. 

[270] Mr Osborn, Mr Burton and Mr Moody were disciplined for using inappropriate 
language and engaging in conduct intended to ignore Mr S.P. By contrast, Mr Hatwell 
directed offensive language towards Mr Flens. I note that Mr Derham was also dismissed for 
directing disparaging and belittling remarks to Mr S.P.310 Esso found that Mr Osborn and Mr 
Burton used offensive language around the Longford site in conversation; Esso did not find 
that they directed that language at a UGL employee, or towards anyone else with the intention 
of creating a hostile environment.311

[271] I note that Mr Lyndon was not disciplined by Esso at all, nor did Esso interview him 
about Mr S.P.’s exclusion from the lunchroom. It was contended that this demonstrated 
Esso’s inconsistency in its disciplinary treatment of the applicants and other employees. 
However, at the time the investigation into Mr S.P.’s allegations commenced, Mr Lyndon was 
soon to retire. His employment ended on 18 November 2017. Mr Lyndon was not named in 
Mr S.P.’s note, which may account for why Esso did not seek to interview him or 
subsequently take any action against him. In any event, his role as the proverbial messenger in 
Mr S.P.’s exclusion from the lunchroom was much less serious than that of Mr Gelagotis. 

[272] Mr Gelagotis initiated and followed up the exclusion of Mr S.P. from the lunchroom. 
Mr Osborn, Mr Moody and Mr Burton ignored or treated Mr S.P. differently when interacting 
with him at the tool store.312 And Mr Burton was found by Esso to have been involved in the 

                                               
308 PN1871
309 Applicants’ final submissions dated 27 February 2018 at paragraph 27(g)
310 Statement of Kirsteen Butler, Exhibit R8 at KB-54
311 Statement of Kirsteen Butler, Exhibit R8, KB-34 (pp. 172-173, 180-181); PN4116, PN4124-PN4125, PN4130-PN4134
312 Statement of Kirsteen Butler, Exhibit R8, KB-34 (pp. 172-173, 178-181); PN4116, PN4124-PN4125, PN4130-PN4134 








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discussions about the exclusion of Mr S.P. from the maintenance lunchroom, but he did not 
instigate the exclusion. There is in my view a qualitative difference between the conduct of 
Mr Gelagotis and that of these other three employees. It should also be recalled that Mr 
Bennett and Mr Derham were dismissed for reasons related to their treatment of Mr S.P.313

Personal circumstances of the applicants

[273] I take account of the disciplinary history of Mr Hatwell and Mr Gelagotis, which is 
unblemished, apart from a warning that each received for participating in the walk off on 20 
June 2017. There is no evidence of any previous behaviour of the kind that I have found 
constituted valid reasons for their dismissal. Mr Hatwell had been employed with Esso for 
over ten years, and Mr Gelagotis for several years, following the completion of his 
apprenticeship. I note their submissions that they expected to continue their careers at Esso. 
Mr Hatwell is doing casual work for an electrical contractor but has not been able to find a 
permanent job. Mr Gelagotis is doing unskilled work for his father. I have taken into 
consideration that in these respects, and no doubt others, dismissal has had very significant 
effects on both applicants, and in the case of Mr Hatwell, also on his family. 

[274] I have also taken into consideration that Mr Hatwell and Mr Gelagotis were suspended 
on full pay on 9 August 2017 for nearly three months while Esso conducted an investigation. 
They did not receive letters setting out the allegations against them until 17 October 2017, 
although some issues had been raised with them earlier, including during the interviews on 15 
August 2017 and 30 August 2017. I appreciate that it was not immediately possible for Esso 
to interview Mr S.P., that it was difficult for the investigation to move forward until this 
interview had occurred, and that Mr S.P. needed to be approached with some sensitivity. 
Nevertheless, during much of the period of the suspension, the applicants did not know the 
detail of the allegations against them in relation to Mr S.P. Although they were suspended on 
full pay, it must have been difficult for them not to be able to go to work as usual and lead 
their normal lives, with the shadow of investigation hanging over them. 

[275] Another consideration I have taken into account is that several of the allegations 
against Mr Hatwell and Mr Gelagotis were unsubstantiated. As I mentioned earlier in these 
reasons, it is sufficient that there be a valid reason for dismissal. The fact that some reasons 
for dismissal are not made out does not necessarily affect the fairness or otherwise of a 
dismissal, but it is a factor that may be considered. 

[276] In my assessment, this consideration does not have a bearing on Mr Gelagotis’ 
dismissal. I have found his mistreatment of by S.P., by initiating his exclusion from the 
lunchroom because he had accepted with UGL, to be substantiated. In the case of Mr Hatwell, 
I have found his conduct in relation to Mr Flens was a valid reason for dismissal, but have not 
found substantiated the allegations about his conduct in relation to Mr S.P. Mr Hatwell’s
suspension was not confined to the issues relating to Mr S.P; the suspension letter refers to 
allegations about ‘harassment of a UGL contractor or contractors’, which includes Mr Flens. 
However, it was the allegations concerning the treatment of Mr S.P. that led to the protracted 
investigation and lengthy suspension. In my view there is an element of unfairness associated 
with the fact that Mr Hatwell was suspended for a long period (rather than a shorter period, as 
would have seemed likely had the investigation been confined to his treatment of Mr Flens) in 
connection with allegations that I have found to be unsubstantiated. However, it is not 

                                               
313 Statement of Kirsteen Butler, Exhibit R8 at paragraphs 93, 114, 116; KB-53, KB-54








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unfairness associated with Mr Hatwell’s dismissal for mistreating Mr Flens. It does not render 
his dismissal for that reason harsh, unjust or unreasonable. 

Proportionality

[277] The proportionality of the dismissal to the conduct that is the subject of a valid reason 
is a matter to be considered in connection with s.387(h). Clearly a dismissal may be harsh 
because it is disproportionate to the gravity of the misconduct on which the employer acted.

[278] As was noted by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited,314

an assessment of the degree of seriousness of misconduct which has been found to constitute 
a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into 
account under s.387(h),315 and it may also be appropriate to conclude that the misconduct was 
of such a nature as to have justified summary dismissal. This does not mean that it is 
necessary to consider that an employee’s conduct meets any particular postulated standard of 
serious misconduct.316

[279] The applicants contended that for conduct to constitute serious misconduct and justify 
instant dismissal it must be serious, a ‘radical breach’ of the employment relationship that is 
inconsistent with its continuation. In this regard they referred to the decision of the Full 
Federal Court in Melbourne Stadiums Ltd v Sautner.317 However, the Full Court in that case 
cites a passage from Rankin318 noting that ‘there are offences which justify dismissal but 
which would not, in themselves, show that the employee was intending not to perform 
contractual obligations in the future’.319 The Full Court in Melbourne Stadiums also noted that 
the applicant’s conduct in that case did not necessarily have to amount to a repudiation of his 
contract of employment to justify his summary dismissal.320

[280] Summary dismissal embraces termination of employment arising from breach of an 
essential term of the employment contract, a serious breach of a non-essential term, or 
conduct manifesting an intention not to be bound by the contract in the future.321 In my view 
Mr Hatwell’s treatment of Mr Flens on 31 July 2017, and Mr Gelagotis’ actions in seeking to 
exclude Mr S.P. from the lunchroom because he had accepted employment with UGL, were 
serious matters, and of sufficient gravity to constitute serious misconduct.

[281] Mr Hatwell used very intimidating and abusive language towards Mr Flens. The 
conduct clearly contravened a policy that applied to Mr Hatwell’s employment and with 
which he was required to comply. He was aware of the policy, had been reminded of it by 
management, and had himself invoked the policy on two occasions. In my view Mr Hatwell’s 
mistreatment of Mr Flens repudiated his contract of employment with Esso. Even if there had 
not been such a policy, use of such language is manifestly unacceptable in the workplace and
amounts to serious misconduct. 

                                               
314 [2015] FWCFB 1033
315 At [34]
316 [2015] FWCFB 1033 at [34]
317 (2015) 229 FCR 221 at [12]-[14]
318 Rankin v Marine Power International Pty Ltd [2001] VSC 150; (2001) 107 IR 117
319 Ibid at [254]
320 Melbourne Stadiums v Sautner (2015) 229 FCR 221 at [15]
321 Ryman v Thrash Pty Ltd [2015] FWCFB 5264 at [27]








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[282] Mr Gelagotis took deliberate steps to exclude Mr S.P. from the lunchroom because he 
had accepted employment with UGL. The conduct was proscribed by a policy with which he 
was required to comply. He was a health and safety representative. Mr Kostelnik’s reminder 
to employees of the importance of the policy on 22 June 2017 came after Mr Gelagotis’
actions on 15 June 2017; nevertheless, Mr Gelagotis acknowledged that he was aware of the 
policy, and that breach of the policy could result in dismissal.322 He had undertaken online 
refresher training on 29 September 2016.323 Mr Gelagotis accepted employment with Esso 
understanding that the policy applied to his employment.324 The policy prohibited conduct 
which has the purpose or effect of creating an intimidating, hostile or offensive work 
environment. Excluding Mr S.P. from the lunchroom because he had accepted employment 
with UGL contravened the policy, and breached his contract of employment. It contravened 
an essential term of the contract that governed standards of behaviour in the workplace. Even 
if this term were considered a non-essential term, the contravention of it was a serious breach. 
The gravity of the conduct is such as to amount to serious misconduct.

[283] For the purposes of my consideration of s.387, I consider that Esso’s summary 
dismissal of the applicants for these reasons was not disproportionate to their conduct in 
question.

Clause 22 of the Onshore Agreement 

[284] In their closing submissions, the applicants contended that Esso failed to comply with 
clause 22 of the Onshore Agreement, which applied to their employment, and that this failure 
makes their dismissal harsh or unjust. This matter was raised as a consideration that the 
Commission should take into account under s.387(h). The applicants contended, and I agree, 
that a dismissal may be harsh despite the existence of a valid reason if an employer has not 
applied a process that it has agreed to apply, or has terminated an employee in contravention 
of an enterprise agreement.325

[285] I note at the outset that, even if the clause operated in the way contended for by the 
applicants, I have concluded that the conduct of the applicants constituted serious misconduct. 
Accordingly, the clause would not have been engaged in the present circumstances.  
Nevertheless, I shall set out my analysis of it. 

[286] Clause 22 is headed ‘discipline procedure’. The entirety of the clause is set out in the 
Appendix to this decision. It commences as follows:

‘A Supervisor will counsel an employee where the performance or behaviour falls 
below acceptable standards.

Unacceptable behaviour may be defined as:

 Continued poor performance;

                                               
322 PN1313-1352
323 Statement of Kirsteen Butler, Exhibit R8 at paragraph 29
324 Statement of Kirsteen Butler, Exhibit R8 at KB-8 - Note that the Harassment Policy is one of the ExxonMobil Standards 

of Business Conduct, Policies and Guidelines
325 Wilson v Australian Taxation Office (2001) 110 IR 78 at [36]-[39]








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 Continued lateness or absenteeism;
 Stubborn unwillingness to abide by Company rules and Regulations;
 Insubordination.

Counselling will normally take the following form: …’

[287] There follow three sub-clauses setting out the relevant form that counselling will
normally take. This entails counselling in the presence of the superintendent, further 
counselling, and a third and final warning. The final paragraph of clause 22 reads as follows:

‘The procedure is designed to protect the rights of the employee and, whilst it does not 
diminish the right of the Company to dismiss an employee instantly for serious or 
wilful misconduct, an employee who is dissatisfied with the way the procedure has 
been applied may raise the grievance in accordance with the Dispute Procedure.’

[288] The applicants contend that the opening words of clause 22 require Esso to counsel an 
employee where performance or behaviour falls below acceptable standards. They say that the 
opening words are mandatory – a supervisor will counsel – and that the clause provides for a 
series of steps graduating in seriousness and culminating with a third and final warning. 

[289] The last paragraph of the clause states that the procedure is designed to protect the 
rights of the employee, and that it is not intended to diminish the right of the company to 
dismiss an employee instantly for serious or wilful misconduct. The applicants contend that 
there is an implication that the clause does diminish the rights of the employer to dismiss for 
reasons other than serious or wilful misconduct. Accordingly, the applicants say that if 
conduct falls short of serious misconduct, the counselling process in clause 22 must be 
applied. It is common ground that the process in clause 22 was not applied in relation to Mr 
Hatwell and Mr Gelagotis. 

[290] It should also be noted that clause 9(a) of the Onshore Agreement states that 
employment may be terminated by the Company by giving notice in accordance with the Act, 
or payment in lieu of notice, but this shall not affect the right of the company to dismiss any 
employee without notice for serious misconduct.

[291] The applicants submit that Esso is not entitled to terminate an employee’s employment 
under clause 9(a) if there is behaviour that engages clause 22, unless it has taken the steps 
prescribed in that clause. In short, the applicants contend that it is only behaviour that 
constitutes serious or wilful misconduct that entitles Esso to ‘by-pass’ the procedure in clause 
22 and proceed straight to dismissal. 

[292] I do not read clauses 9 and 22 in this way. Clause 9 is cast in general terms and allows 
the company to terminate on notice as contemplated by the Act. It does not state that it is 
subject to clause 22, and clause 22 does not state that it derogates from clause 9. Clause 22
says that a supervisor ‘will counsel’ an employee where performance or behaviour falls below 
acceptable standards. These standards are defined broadly and inclusively. But the clause then 
states that counselling will ‘normally’ take the following form. This suggests that usually, or 
perhaps in a normal situation (but not always) the form of counselling described in the clause 
will apply. The applicants say that this goes to the form and content of the counselling, not 
whether counselling must occur. But if a different ‘form’ can be adopted, that form might be 








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of a minimal dimension and content. Further, counselling does not necessarily preclude 
dismissal. A person might be counselled and dismissed.

[293] The last paragraph in clause 22 states that the clause does not diminish the company’s
right to dismiss an employee for serious misconduct. This suggests that the right to dismiss 
for other reasons is diminished. But how is it diminished? The succeeding phrase states that 
‘an employee who is dissatisfied with the way the procedure has been applied may raise the 
grievance in accordance with the Disputes Procedure.’ If the procedure has been applied, the 
employee may challenge the application of the procedure. This is the way in which Esso’s 
right to dismiss for conduct short of serious misconduct is curtailed.  The ‘procedure’ might 
also encompass other forms of counselling that have been adopted, aside from the ‘normal’
form set out in clause 22.

[294] The clause does not, in my view, say or imply that the employer cannot dismiss an 
employee on notice unless the counselling procedure has been applied. I note that the 
reference to clause 9(a) in the second last paragraph of the clause (to the effect that, if there is 
no improvement, the company can suspend or be free to terminate under clause 9(a)), is in my 
view simply a statement of fact, not the lifting of a limitation. In any event, this paragraph 
forms part of the ‘normal’ counselling procedure, and is not applicable to other forms of 
counselling that might be used. 

[295] As noted earlier, I have concluded that the conduct of the applicants did amount to 
serious misconduct, and in that circumstance it is common ground that clause 22 of enterprise 
agreement is not engaged. 

Conclusion 

[296] The circumstances from which these applications have arisen are lamentable. Mr Flens 
and Mr S.P. have been subjected to mistreatment. Mr Hatwell and Mr Gelagotis have lost 
their jobs. Other Esso employees have been dismissed and disciplined. The workplace has 
been divided. 

[297] Many individuals and their unions hold strong views about the employment 
arrangements at UGL. That is their right. Some former UGLK employees have chosen to 
accept, or perhaps have had little financial choice but to accept, employment with UGL on 
lesser conditions than those that they previously enjoyed. This is their right. 

[298] The industrial circumstances at Longford have been the subject of much evidence and 
argument in these matters. However, the focus of my consideration of these two applications 
has been the conduct of the applicants. 

[299] Taking into account all of the evidence and the considerations in s.387 of the Act, and 
based on my factual findings, I consider that the dismissal of Mr Hatwell was not harsh, 
unjust or unreasonable, and that his dismissal was therefore not unfair. 

[300] Taking into account all of the evidence and the considerations in s.387 of the Act, and 
based on my factual findings, I consider that the dismissal of Mr Gelagotis was not harsh, 
unjust or unreasonable, and that his dismissal was therefore not unfair. 








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[301] Accordingly, the applications for unfair dismissal remedies are dismissed.

DEPUTY PRESIDENT

Appearances:

M Harding of counsel for Mr Hatwell and Mr Gelagotis
F Parry QC with L Howard of counsel for Esso Australia Pty Ltd

Hearing details:

2018
Melbourne:

29, 30 and 31 January
1 and 2 February 
19 March 

Final written submissions:

Applicants: 27 February 2018
Respondent: 12 March 2018
Applicants in reply: 16 March 2017

Printed by authority of the Commonwealth Government Printer

PR606668


WORK COMMISSION THE SEAL OF THE




 



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Appendix

Clause 22 of the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 
2017

22. DISCIPLINE PROCEDURE

A Supervisor will counsel an employee where the performance or behaviour falls below 
acceptable standards.

Unacceptable behaviour may be defined as:
 continued poor performance;
 continued lateness or absenteeism;
 stubborn unwillingness to abide by Company Rules and Regulations;
 insubordination.

Counselling will normally take the following form:

(a) Counselling of the employee in the presence of the Superintendent and, if the employee
wishes, the Delegate.

(i) The Supervisor will identify the unacceptable behaviour and give the employee the 
opportunity to explain.

The Supervisor will outline the possible consequences of a failure to improve 
performance/behaviour.

(ii) If the matter is not satisfactorily explained a written report of the incident and the
counselling session will be placed on the employee's personal file. The record will 
note a date for review with the employee. A copy of the report will be given to the 
employee.

(iii) At the review an employee shall have a letter put on file identifying improved
performance/behaviour if applicable.

(b) Should the behaviour be repeated or no improvement noted then a further counselling 
session will be held.

(i) The Superintendent and Delegate will again attend and a formal counselling will 
take place at which the Supervisor will identify the problem and note required 
improvements.

The parties will be ready and willing to assist the employee in overcoming any 
problems which may have a bearing on the unacceptable behaviour.

(ii) If there is no satisfactory resolution another written report will be placed on the
employee's personal file. The report will note a review date.








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(c) The third and final warning will be given if there is no appreciable improvement by the 
review date.

(i) The Delegate, Union Official and Management representatives will be present for 
the counselling session.

(ii) If there is no resolution the employee will be given a signed warning of dismissal 
and a copy will be retained on file.

(iii) A date of review will be noted on the report.

(iv) At the review, and in the case of satisfactory improvement, the employee will be 
given a report identifying the improvement.

Should there be no substantial improvement the Company shall have the right to 
suspend the employee without pay for a period the Company considers appropriate (up 
to a maximum period of four weeks), or be free to terminate the contract of 
employment in terms of the provisions in Clause 9(a) of this Agreement.

The procedure is designed to protect the rights of the employee and, whilst it does not 
diminish the right of the Company to dismiss an employee instantly for serious or wilful 
misconduct, an employee who is dissatisfied with the way the procedure has been applied 
may raise the grievance in accordance with the Disputes Procedure.

Cases cited by this decision: