[2014] FWC 7775
FAIR WORK COMMISSION

DECISION


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

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

DEPUTY PRESIDENT SAMS

SYDNEY, 3 NOVEMBER 2014

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

INTRODUCTION

[1] Ms Susan Francis (the ‘applicant’) was employed by Patrick Stevedores Holdings Pty Ltd (‘Patrick’ or the ‘respondent’) from 10 September 2012 until 13 January 2014, when she was dismissed for misconduct. At the time of her dismissal, she was a Senior Tally Clerk. In this role, she was responsible for ensuring the movement of correct cargo on and off a ship and into its correct placement. The applicant is 42 years old and is the sole carer for her four year old daughter. The applicant had previously worked for Newcastle Stevedores between 2002 and 2009, but stopped working to care for her child, before taking up her job with the respondent.

[2] This decision arises from an application, filed by the applicant on 3 February 2014, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) for a remedy from unfair dismissal. The matter was the subject of an unsuccessful telephone conciliation on 17 March 2014 and was allocated to me for arbitration, beginning 27 May 2014 in Newcastle. While the parties engaged in some brief settlement discussions on that day, these were ultimately unsuccessful and the matter progressed to arbitration. At the commencement of the proceeding, I granted permission, pursuant to s 596 of the Act, for the applicant to be represented by Mr A Howell of Counsel, instructed by Mr A Jacka for the Maritime Union of Australia (‘MUA’ or the ‘Union’) and for the respondent to be represented Mr S Burke, Solicitor, instructed alternately by Ms T Green and Ms C Ross of the respondent.

[3] When the applicant was dismissed on 13 January 2014, she was given a letter from Mr Warwick Sommer, General Manager - Stevedoring, expressed in the following terms:

[4] The allegations referred to above were set out in a letter sent to the applicant on 16 December 2013 as follows:

[5] The reference to Employee Responsibilities under the Asciano Prevention of Bullying and Bullying and Harassment Policy is set out under the heading of ‘9. Employee Responsibilities’ as follows:

[6] At this point, I do not apprehend there to be any jurisdictional objections to the matter proceeding to arbitration. Specifically, I am satisfied that the applicant was a person protected from unfair dismissal (ss 382, 396(b)) in that she completed the minimum employment period of 6 months (ss 382(a), 383(a)) and that she was covered by the Patrick Bulk and General Newcastle Enterprise Agreement 2012 [AE899038] (s 382(b)(ii)). Additionally, the application was made within 21 days of the dismissal (ss 396(a), 394(2)), the respondent is not a Small Business as defined (ss 396(c), 388) and the applicant’s dismissal was not a case of genuine redundancy (s 396(d)). For the sake of completeness, there is no doubt that the applicant was a national system employee and that the respondent is a national system employer, as defined (ss 13, 14, 380).

THE EVIDENCE

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

For the applicant:

For the respondent

The applicant

[8] In her written statement, the applicant deposed that she worked between 8:00pm and 8:00am on 26-27 November 2013. In the earlier part of that shift, after waiting in the shed for Mr Brad Gorlicki, a Forklift Driver to assist with moving some steel plate, she had said over the two-way radio: ‘Are you going to bring that forklift into the shed or what Gorlicki?’. There was a response of ‘Why don’t you shut the fuck up Susie?’ The applicant did not immediately respond to this, but when Mr Gorlicki came into the shed, she told him not to speak to her like that again. Mr Gorlicki told her that it was ‘Nicko’ (Mr Paul Nichol) who had spoken to her over the two-way radio. The applicant explained that she had only spoken on the two-way radio to ask Mr Nichol, who had been working in the hull of a ship, if there were any delays. He had not replied and Mr Jake Roach had notified her of what was happening on the shift.

[9] The applicant said that prior to this incident and the subsequent allegations made by Mr Nichol, she considered him to be a friend. On one occasion, she had paid for Mr Nichol and his girlfriend to attend a boat cruise and for their drinks while they were there. They talked about general things at work. On another occasion, he had hit her on the head with a radio while she had a hard hat on. She had thought that this was only in fun, and responded by jabbing him in the back. He had once referred to her as a ‘ranga’ in front of other workers and asked her if ‘the carpet matched the curtains’ on a number of occasions. After the first time this happened, two of her colleagues had called her to ask if the comment had upset her. While she thought it was ‘out of line’, she had not complained about it.

[10] Returning to the night of 26 November 2013, the applicant said that the dinner break took place at midnight. She entered the meal room and spoke to a number of people while she prepared her refrigerated dinner. When she walked back from heating her dinner in the microwave, she said to Mr Nichol, ‘And by the way, don’t you ever talk to me like that again.’ Mr Nichol was sitting at a table with his back against the window and responded sarcastically, saying ‘And what are you going to do about it?’ The applicant jokingly said ‘I’ll smash you’. Mr Nichol repeatedly said, ‘Come on, come on then’, though not in an aggressive manner.

[11] The applicant had initially thought she and Mr Nichol were ‘just mucking around’ and moved approximately five steps towards Mr Nichol, with one hand pointed towards him and she may have touched his shirt. Mr Nichol responded by punching her ‘firmly’ in the chin/throat, but not hard enough to knock her over. She was shocked and upset. When she stepped back, Mr Nichol said, aggressively and in a raised voice, ‘You strangled me and that’s abuse’ a couple of times, amongst some other things. She sat down and ate some of her meal and then went back to work. She did not have a chance to speak to Mr Nichol until the second break, which took place at approximately 5:00am. Mr Nichol spoke to her like nothing had happened.

[12] The applicant explained that after finishing a 12 hour shift on the morning of 27 November 2013, she was approached by Mr Wickham, who informed her she was to be stood down immediately and would be required to attend a meeting at 7:00pm due to allegations made by Mr Nichol. She was shocked. She had asked her partner, Mr Gough to cancel the meeting, as she had not been able to sleep, but had then changed her mind and attended the meeting with Mr Wickham and Mr Michael Ryan (Continuous Improvement Manager). Mr Gough attended with her as her support person. She was told that Mr Nichol had alleged that she had ‘ran into the lunch room screaming at him and strangled him.’ She described the incidents as she recalled them, but noted that she substituted the word ‘fuck’ with ‘Mmm’ (in recalling the two-way radio incident) as she was embarrassed to swear in front of management. She was told that Mr Nichol had been stood down, but she now did not believe this to have been the case. She was told to sign a document which Mr Wickham had written on. She had not read it and had not realised that this was her statement. She had never been given a copy.

[13] The applicant was told a couple of hours after this meeting that she could return to work, as none of the employees on shift had corroborated Mr Nichol’s allegations. However, at 9:00am on 28 November 2013, Mr Wickham called her to reverse this decision, as someone had confirmed Mr Nichol’s story. She attended a further meeting with Mr Wickham, Ms Tamara Green (Regional HR Manager) and Mr Kevin Roach (Stevedoring Operational Manager, Newcastle). She attended with Mr Outram and Ms Michelle Myers of the Union and Mr Gough. She again outlined her version of the incident, describing more specifically who had been in the lunch room and providing a rough diagram of the room at that time. Mr Outram had asked Patrick to pay her while she was stood down. Mr Wickham contacted her on or around 15 December 2013 to tell her that she would be receiving a letter from Patrick. The letter of 16 December 2013 directed her to attend a meeting with Mr Wickham and Ms Green on 19 December 2013. She was allowed to bring a support person. The letter described the allegations as follows:

[14] The applicant took up the opportunity to respond to the allegations in writing on 19 December 2013. In this document, she specifically denied using abusive or inappropriate language over the two-way radio and emphasised that someone had responded by saying ‘Shut the fuck up Suzie’. She also denied walking directly up to Mr Nichol when she entered the meal room and described the incident in similar terms to that above (see paras [10]-[11]). She defended her use of the phrase, ‘Don’t you ever talk to me like that again’ as reasonable in the circumstances and denied she had been shouting. She specifically denied grabbing Mr Nichol around the throat; rather she had been assaulted by Mr Nichol and she questioned why he was still at work. She complained about the inconsistency and confusing aspects of her treatment by Patrick and the effects this had had on her.

[15] The applicant attended the meeting with Mr Wickham and Ms Green on 19 December 2013 with Mr Outram of the Union acting as her support person. She handed her written response to the Patrick representatives. They asked if she wanted them to read the document before making their decision. When she said yes, they asked her to step outside. Approximately fifteen minutes later, she was asked to come back in and told that Mr Wickham and Ms Green would need to show her written response to higher levels of management.

[16] The applicant described another meeting she attended with Mr Wickham and Ms Green and Mr Outram acting as her support person, but she could not remember the date. This was in the Newcastle Stevedores offices, as the Patrick offices were being painted. She was upset about this as she had previously worked for Newcastle Stevedores between 2002 and 2009 and did not want anyone there knowing what was happening. She had expressed her distress that Patrick was not making a decision. She felt that she had been judged guilty from the start. She was told that a decision would likely be made at a further meeting in the new year. The applicant attended a further meeting with the same parties on 13 January 2014. Mr Wickham read out a letter setting out that she was dismissed (see para [3]).

[17] In further evidence, the applicant described an aggressive altercation she had witnessed between Mr Nichol and Mr O’Connell while Mr O’Connell was on a crane and Mr Nichol was working in the ship. Mr Nichol had yelled words to the effect of ‘Come down here, get out of the cab, come down here, I’ll kill you’ over the two-way radio. Mr O’Connell responded in kind. She had told the Team Leader, Mr Cassidy of this incident, but after he listened to it, he had been unconcerned and no action was taken.

[18] In oral evidence, the applicant agreed that she had been spoken to about the incident on 27 or 28 November, 4 and 19 December 2013 and 9 and 19 January 2014. However, she had not been provided with notes made by the respondent during these conversations.

[19] The applicant clarified that she had been working in the shed when she spoke to Mr Gorlicki over the two-way radio about the forklift. She had known he was on the forklift because she had seen his truck around the corner of the shed. There was no load coming out of the ship at the time as the workers were engaged in changing the crane lifting gear. Somebody had responded to her over the radio by saying ‘Shut the fuck up, Suzie’ and she had thought it was Mr Gorlicki. She had stood up on the step of his forklift and spoken to Mr Gorlicki sternly when he came back into the shed as she was annoyed to think that he would talk to her in that way. However, she had not been yelling. Mr O’Connell and Mr Ferguson had been working with her in the shed at the time. Mr Ferguson was about five or six metres away on his operational forklift and would not have been able to hear them.

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

The applicant claimed that she had never been shown this document before, or had it read to her or summarised for her. She denied shouting or that she had threatened to punch anyone in the head.

[21] The applicant was shown the witness statements of Mr Nichol and Mr Ferguson. She denied she had shouted insults over the two-way radio and specifically that she had called Mr Gorlicki an ‘imbecile’. She had simply asked him when he was going to get the forklift back into the shed. In any event, the incident in question had occurred at 11:00pm, not 3:00am. The applicant denied Mr Nichol would have needed radio silence when he was in the hatch of the ship, as this was not really possible where there were ten people using the same channel. People could not speak over each other and only one person could be heard at a time. She had not responded when she had been told to ‘Shut the fuck up’.

[22] The applicant believed that Mr Gough, Mr O’Connell, Mr McIntyre, Mr J Roach, and possibly Mr Ferguson were present in the meal room during the confrontation between herself and Mr Nichol. She described the room in which the incident took place as being rectangular and about six metres long. The applicant was also shown a ‘mud map’ of the room drawn by her, which demonstrated that Mr Nichol was the furthest away from anybody from the door. Mr Nichol was sitting at his usual table on the aisle.

[23] The applicant explained she had walked in and sat next to Mr Gough, who was eating an Indian takeaway and she asked him where hers was. He replied that it was in the fridge. She had walked over to the fridge, taken out the food, and put it in the microwave. She grabbed plastic cutlery and talked to Mr Cox. She turned around and addressed Mr Nichol in words to the effect of, ‘And by the way, don’t you ever talk to me like that again.’ She was about two and a half metres away. He had replied ‘And what are you going to do about it’. She had replied, ‘I will smash you’, but not in an aggressive fashion. Even so, she regretted having made this comment. Mr Nichol had replied ‘Come on, come on then’, but this was not said in an aggressive fashion either. She had thought they were just ‘fooling around’. She walked up to him, with the cutlery and takeaway container lid still in her hand and pointed her finger at him. She may have ‘brushed’ his shoulder or collar with one hand, but not two. She had not ‘cuddled’ him and they were about arms-length from each other. He had punched her in the throat and then said ‘Don’t you touch me, don’t you put your hands on my throat’ and ‘I will put charges on you.’ She could not recall replying to Mr Nichol. She then sat down, but did not feel like eating at this point.

[24] The applicant could not really recall what happened next, though there was a separate discussion taking place about the possibility of extending twelve hour shifts under the enterprise agreement. Mr Nichol had acted like nothing had happened at a subsequent break at 5:00am. She was rung at home at 9:00am after this shift and told that she and Mr Nichol would be stood down.

[25] The applicant denied that Mr Wickham had read any statement out to her at their first meeting on 28 November 2013. She had not seen the notes he had made at that meeting until this proceeding. They were as follows:

The applicant clarified that when relaying what had been said to her over the two-way radio, she had said ‘Shut the mmm up Suzie’ and thought that it would be understood that she meant ‘Shut the fuck up Suzie’. Mr Gough had been there as her support person in that meeting and may have clarified this point as well.

[26] The applicant had sought to ‘touch’ Ms Green at the meeting on 9 January 2014 to demonstrate how she had ‘touched’ Mr Nichol. She did not think Ms Green was ‘shocked’ at this and she had not said anything. She denied that she had said that Mr Roach should not retain his position, though she had said that people were unhappy at the approach that he and Mr Grech were taking in allocating shifts. She further denied that she had said that she would not work under Mr Roach’s direction. She also agreed that she had made allegations about the local delegates (Mr Carter and Mr Grech) as playing a part in Mr Nichol’s complaint. Mr Carter did not like her as she had taken offence to his use of the word ‘scab’ and an allegation that non-Union workers had been bashed in front of their families.

[27] Throughout her time on the Newcastle wharves since 2002, the applicant had never known the Union to take a member to the boss to make a complaint about another member. Usually, a complaint would be made to the delegate and then the delegate would ring the Union’s office. She did not know what would happen after that, but the issue would be sorted out internally.

[28] In cross examination, the applicant agreed that she was aware of the Asciano Code of Conduct and that she had attended a number of workshops setting out the requirements under the Code. This set out her obligations to take care of herself and others and to demonstrate respect to customers, colleagues and the public. She understood that if she failed to comply with these standards, she could be dismissed and she was required to raise any breaches of conduct or policy with a Manager or Supervisor. She understood direct violence or threatening body language could be construed as bullying under the Code. She had not initially felt it was necessary to report Mr Nichol, saying ‘You work on the wharf, you get a bit of a hard shell.’

[29] The applicant denied referring to Mr Gorlicki as an ‘imbecile’ or in a disrespectful manner over the two-way radio. She agreed that she had been frustrated that she was getting all night shifts (the ‘Dog Watch’) and she thought that Mr Grech was favouring his friends by allocating them the better shifts. While she could not recall whether the person on the two-way radio said ‘Shut the fuck, Suzie’ or ‘Why don’t you shut the fuck up Suzie’, she insisted that the word ‘fuck’ had been used. She accepted that her evidence that she had only used the two-way radio to communicate with Mr Nichol in the hold of the ship, was inconsistent with her evidence of her communications with Mr Gorlicki.

[30] The applicant repeated her evidence that the physical confrontation between herself and Mr Nichol took place during the first break at approximately 11:00pm, rather than on the second one at 5:00am. She had entered the meal room, spoke to Mr Gough and Mr Cox, both of whom were sitting down. She denied entering the room and telling Mr Nichol, ‘If you tell me to shut up again, I’ll punch you in the head.’ She did not think her conduct in walking five steps towards Mr Nichol and saying, ‘I’ll smash you’ was aggressive or threatening as they were friends and it was not said in an aggressive manner - she thought that it was just banter.

[31] The applicant denied that Mr Wickham had read her the complaint of Mr Nichol (see para [20]). He had simply asked her what had happened as Mr Nichol had reported that she had ‘strangled’ him. Mr Gough had referred to the use of the word ‘fuck’, but this was not reflected in Mr Wickham’s notes. It was not a true record of what she said. The applicant clarified that the reason her hand touched Mr Nichol’s shirt was because he punched her in the throat, though she accepted that her own written response of 18 December 2013 referred to her being punched ‘straight into my chin’. She conceded her evidence on this point was inconsistent. Her finger would have touched his collar on his shoulder and not the chin, as referred to in Mr Wickham’s notes.

[32] The applicant accepted that Mr Nichol had said ‘You strangled me and that’s abuse’ in a loud, aggressive tone. It was possible that he had said ‘Never grab me again’ or ‘Don’t touch me again’. She denied that she had her hands around his throat. He had also said something like, ‘I could charge you.’ She thought that Mr Nichol was trying to set her up. She acknowledged that she had left some of these statements out in her original written response to Patrick.

[33] The applicant conceded that she had not reported the incident to Management or a Team Leader, because ‘that’s not how Union members go about things.’ She agreed she was in a relationship with Mr Gough, but she had not reported this incident to him either. She had not reported the occasion on which Mr Nichol had struck her on her helmet with a radio as he was just ‘clowning around’ and she did not think he was bullying her.

[34] The applicant agreed that she had signed Mr Wickham’s notes of her interview on 28 November 2013 (see para [25]) and that Mr Gough had witnessed her signature, although they had been walking out the door when Mr Wickham had handed it to them to sign. She had not read it. She accepted that there had been no duress applied to her or Mr Gough to sign this document. By this point she had skipped two days’ sleep and was stressed. She could not recall if she had told Mr Wickham this. She did not realise that Mr Wickham’s notes were meant to be her statement. The written response she had provided to Patrick on 19 December 2013 better reflected the truth of the incident.

[35] The applicant was shown a document which was said to identify her starting a shift on 27 November 2013 at 11:00pm. The applicant could not recall working between the shift on which the incident took place and the meeting with Mr Wickham and specifically could not remember working a shift of 11:00pm-7:00am on 27-28 November 2013. She agreed that Mr Wickham’s notes set out that their meeting had occurred on 28 November 2013.

[36] In response to a question from me, the applicant stated that she had not been told who had come forward to confirm Mr Nichol’s version of events on or around 28 November 2013. She now knew that person to be Mr McIntyre.

[37] In re-examination, the applicant clarified that the training in relation to bullying had emphasised that if an employee had felt bullied, they should report it.

[38] The applicant agreed Mr Wickham had never asked her to adopt his notes as a true and correct account of the meeting.

[39] The applicant said that she had spoken to Mr O’Connell and Mr Gough after the incident with Mr Nichol. Mr O’Connell had noted that Mr Nichol was ‘not himself’. She had spoken to Mr Nichol during the second break and he had said something about sleeping in the bush the night before.

Mr Bradley Mackerras

[40] Mr Mackerras has worked at Patrick’s operations in Newcastle since they began and has been a member of the Union since 1992. He was working as a Crane Driver on the night of 27 November 2013. He is usually rostered as a Team Leader or in a crane. In these roles, he hears all communications over the two-way radio.

[41] Mr Mackerras claimed that he had not heard the applicant engage in any abusive or inappropriate communications on the night of 26-27 November 2013. He remembered Mr Nichol saying, ‘Shut the fuck up Susie and get on with your job’, although he did not think much of this at the time as he thought that they were friends and these sorts of comments usually went both ways, without either person taking offence.

[42] It was Mr Mackerras’ evidence that he was the closest person to Mr Nichol in the meal room during the second break at 5:00am. He did not see her enter the room and shout at Mr Nichol or grab his throat, although he was not watching them as he was reading the enterprise agreement. He acknowledged that he was tired after working four twelve hour shifts. He recalled Mr Gough raising his voice and saying, ‘I paid good money for that.’

[43] Mr Mackerras offered his opinion that the applicant usually got on well with people and did not behave aggressively, abusively or inappropriately. He described her as ‘one of the best Tally Clerks we had’. He praised her work performance and he had put this to Patrick when it was proposed to dismiss her. He would have no difficulties in working with her again.

[44] In oral evidence, Mr Mackerras explained he was the Shift Delegate for the Union on the night of 26-27 November 2013, meaning that he had been elected for that shift at the preceding Toolbox Meeting. While driving the crane, he would use the two-way radio to communicate with the ‘Grade 5 down below’ and other persons on the wharf.

[45] Mr Mackerras was shown Mr Nichol’s original complaint (see para [20]. He could not recall the applicant having said anything derogatory or ‘shouting insults’ over the two-way radio that night or anything to the forklift drivers at all. When asked what he would have done if someone had been ‘shouting insults’ over the two-way radio, Mr Mackerras was unsure and explained that ‘we have a laugh sometimes on the radio’ but generally people were not aggressive over the two-way radio as they were mindful that the Supervisor has a radio in their office. However, generally there were no Supervisors on shift during the ‘Dog Watch’ shifts. As Shift Delegate and a Grade 6 employee, he would try to talk to people to sort out any issues which arose on the shift. Some things said in the heat of the moment were best left alone.

[46] Mr Mackerras acknowledged that he had not mentioned Mr Nichol having said ‘Shut the fuck up, Suzie’ over the two-way radio when he had met with Patrick representatives on 28 November and 9 December 2013. He believed he had been on the deck of the ship at the time and the crane would have been in operation. as he had been very tired on the night in question, he had not recalled until later when he had been preparing his statement with lawyers. In any event, ‘I didn’t see or hear anything’ would be the ‘typical wharfie statement’ as they were disinclined to ‘dob each other in.’

[47] Mr Mackerras’ evidence was that he was less than one metre away from Mr Nichol in the meal room. He had been sitting behind the table with his back to the window and had been looking at the enterprise agreement to see how many 12 hour shifts they could do on extensions. Some employees (Mr Nichol and Mr Gough) had brought to his attention that they were on their third 12 hour shift and they could not do more than three over midnight. Mr Mackerras stated that he had not heard the applicant ‘storm into’ the meal room or threaten to punch Mr Nichol in the head. It was a small room and he would have heard it, as he was sitting so close by. He specifically could not recall the applicant grabbing Mr Nichol by the throat and raising her hand as if to strike him.

[48] Mr Mackerras said he was aware of a complaint the applicant had made about how Mr Carter had come to be elected as Union delegate. This issue was raised before 27 November 2013. Mr Mackerras said he had been a Union member since 1992. Typically, where there was a dispute between Union members, one would cite another to appear before a Union representative and a decision would be made as to who ‘was in the wrong’. This could result in a fine or reprimand through the Union. At that time, he was unaware of any delegate making a complaint about another member to management.

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

[50] In later evidence, Mr Mackerras agreed that he had been aware that Mr Gough was in a relationship with the applicant when Mr Gough brought the petition to him to sign.

[51] In cross examination, Mr Mackerras agreed that the Grade 5 with whom he was in two-way radio contact while in the crane (Mr Nichol) was responsible for discharging the hatch and that the use of the two-way radio was integral to safety. If someone had been using the two-way radio unnecessarily, this could compromise safety. Even so, he did not consider the use of the term ‘imbecile’ over the two-way radio to be abusive. It may be inappropriate, but it happened regularly. He could not recall the applicant calling Mr Gorlicki an ‘imbecile’ or using the radio to air her frustrations over the roster. Mr Mackerras restated that Mr Nichol had said ‘Shut the fuck up Suzie and get on with your job’ rather than ‘Shut up Suzie’.

[52] Mr Mackerras was shown a record of interview dated 28 November 2013 and marked ‘Susan Francis/Paul Nichol incident’ conducted by Mr Wickham which simply stated, ‘I did not hear or see anything.’ He had read it before signing it. The first time he recalled the use of the expression ‘Shut the fuck up, Suzie’ was after being prompted by the applicant’s Counsel. Mr Mackerras was shown the notes made by Ms Green of a further interview conducted by Mr Wickham and Ms Green. Mr Outram of the Union was also present. He acknowledged that these notes set out that he had been ‘thinking about it’ and that his recollection of the incident between the applicant and Mr Nichol in the meal room was similar to the evidence given above (see para [42]), and that he was not aware of the ‘radio incident’.

[53] In re-examination, Mr Mackerras deposed that Mr Wickham had not described the allegations made by Mr Nichol, he had just asked him what had happened. Nor could he recall if it had been put to him at the meeting of 9 December 2013 whether Mr Nichol had said, ‘Shut the fuck up, Suzie’, they had simply asked if he could remember anything that he had heard over the radio.

Mr David Gorlicki

[54] Mr Gorlicki has worked for Patrick in Newcastle since August 2012 and has been employed by Patrick since 2004, having previously worked in Port Kembla.

[55] In his written statement, Mr Gorlicki referred to the letter sent to the applicant on 16 December 2013 (see para [13]). He had been driving the forklift on the night shift on 27 November 2013. He could recall that the applicant had been talking on the radio, but could not recall exactly what she was saying. He could not recall her having said anything ‘abusive’ or ‘inappropriate’. However, he did hear Mr Nichol, who was working in the hull of the ship say, ‘Shut the fuck up, Suzie and just do your job.’ He did not remember if the applicant had responded. He described Mr Nichol’s comment as derogatory, especially considering it was made in public. Mr Gorlicki said that when he returned the forklift to the warehouse at the applicant’s request, she approached him and asked why he had spoken to her like that over the radio. He replied that it had been Mr Nichol, not him.

[56] Mr Gorlicki had been in the meal room at 5:00am when the confrontation between the applicant and Mr Nichol occurred. He could not recall the applicant entering the room, walking directly to Mr Nichol and shouting at him or grabbing his throat. He described the dimensions of the meal room, noting that it was small. He would have seen this if it occurred. Mr Gorlicki described the relationship between the applicant and Mr Nichol as having been previously friendly. If there had been aggression between them, he would have thought it was unusual.

[57] Mr Gorlicki claimed that he had never received copies of the notes taken by the Patrick representative after the meetings he had had with the Company in relation to the above incidents.

[58] In oral evidence, Mr Gorlicki agreed that the applicant would have been talking to him on the two-way radio on the relevant night. He was driving the forklift at the time, and the two-way radio was on his chest. She was not shouting insults at him. Nor had she called him an ‘imbecile’. Mr Nichol had said ‘Shut the fuck up, Suzie and just do your job.’

[59] Mr Gorlicki said that when he returned to the warehouse, the applicant spoke to him in a ‘stern’ fashion. She was about two metres away from him and he was seated on the forklift. It was turned off and there were other people nearby putting away steel plate which had been discharged from the ship - probably Mr O’Connell, who was approximately 30 or 40m away. He could not recall how far away Mr Ferguson was.

[60] Mr Gorlicki was shown notes of an interview conducted with him by Mr Wickham. They were as follows:

Mr Gorlicki could not say whether this account reflected what he had said to Mr Wickham on 28 November 2013, though he referred to the wharfies’ rule of ‘looking after your mates’ and noted that this included Mr Nichol.

[61] Mr Gorlicki acknowledged he had signed the above notes, but could not recall what Mr Wickham had said to him when he was asked to sign. He had not been asked whether the applicant had called him an ‘imbecile’ and the respondent’s representatives had not asked if she had been sending insults over the two-way radio. They had merely asked as to the manner in which she had spoken over the two-way radio.

[62] Mr Gorlicki could not recall the applicant having shouted at Mr Nichol, saying words to the effect of ‘Don’t you ever talk to me like that again’ or her having grabbed Mr Nichol by the throat. Nor had he heard the applicant say ‘If you tell me to shut up again, I will punch you in the head.’ It was a small room and he would have seen and heard this had it occurred.

[63] Mr Gorlicki was shown a document said to be the relevant roster. He agreed that it set out that a shift began at 11:00pm, Wednesday 27 and finished at 7:00am on Thursday 28 November.

[64] In cross examination, Mr Gorlicki conceded that he had been mistaken in previously stating that the two-way radio incident took place at approximately 3:00am. This had become clearer when preparing for the proceeding with Mr Howell.

[65] Mr Gorlicki agreed that referring to someone over the two-way radio as an ‘imbecile’ would be aggressive and abusive behaviour. However, this had not been said to him by the applicant. He denied that he said this only because of the ‘wharfies’ rule’. He could not recall the applicant making complaints about the roster over the two-way radio.

[66] Mr Gorlicki was again shown the notes prepared by Mr Wickham after their meeting (see para [60]) and Mr Nichol’s complaint (see para [20]). He denied that Mr Wickham had read Mr Nichol’s complaint to him at the interview on 28 November 2013. He could not recall the exact allegations about the applicant which had been put to him by Mr Wickham, although he remembered Mr Wickham telling him about an incident in the meal room at 5:00am. However, he had not referred to the applicant grabbing Mr Nichol’s throat. Mr Wickham had asked him to read the notes and sign them if it represented what had happened. However, he had not seen a physical assault by the applicant on Mr Nichol or a physical assault by Mr Nichol on the applicant in the meal room.

[67] Mr Gorlicki explained that he had not initially referred to Mr Nichol’s use of the phrase, ‘Shut the fuck up, Suzie’ as both the applicant and Mr Nichol were friends of his and he did not want to get either of them in trouble. He accepted his evidence on this point was different to what he had put to Mr Wickham on 28 November 2013.

[68] Mr Gorlicki clarified that the applicant was not standing on the step of the forklift when she remonstrated with him about telling her to ‘Shut the fuck up’ - she was about two metres away.

[69] Mr Gorlicki was shown notes of a meeting attended by him, Mr Wickham, Ms Green and Mr Outram on 9 December 2014. These notes were as follows:

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

[70] Mr Gorlicki acknowledged that he had been trained in relation to bullying, harassment and the Code of Conduct on 19 September 2013. Using the phrase ‘Shut the fuck up, Suzie’ would have breached these requirements and he would have been obliged to report this behaviour, if he had witnessed it. However, he explained that he would have preferred to have dealt with a dispute like this himself. Indeed, the training he had received that day had encouraged employees to try to resolve the situation themselves.

Mr Denis Outram

[71] Mr Outram was Acting Branch Secretary of the Union from mid-late November 2013 when the Branch Secretary took annual leave.

[72] In his written statement, Mr Outram explained that he had spoken to Mr Nichol at approximately 5:00am on 27 November 2013 by telephone. He was seeking advice as to whether the night shift could extend after twelve hours. Mr Outram hung up and called him back approximately 15 minutes later to say that this was not allowed under Part A of the enterprise agreement. Mr Nichol acknowledged this answer and the call ended.

[73] Mr Outram referred to Mr Nichol’s statement and denied that Mr Nichol had raised any allegation of a physical assault by the applicant. He did not believe that Mr Nichol had sounded upset when he had spoken to him.

[74] In cross examination, Mr Outram confirmed that the telephone call from Mr Nichol had been ‘around 5am’. He did not believe that the second phone call had occurred before 5:00am in any event. He could not say whether the phone calls had taken place before or after the alleged physical confrontation between Mr Nichol and the applicant.

Mr David Cox

[75] Mr Cox has been working for Patrick in a casual capacity since February 2013. He has not worked for Patrick in Newcastle since January 2014 and is otherwise employed.

[76] Mr Cox referred to the letter sent to the applicant by the respondent on 16 December 2013 (see para [4]). He explained that he was not carrying a two-way radio and therefore could not comment on any exchange between the applicant and Mr Nichol over the two-way radio.

[77] Mr Cox deposed in the second smoko at 5:00am on 27 November 2013, he made himself a coffee and sat with his back facing the wall. The applicant had sat at the table directly opposite him and Mr Nichol was at the table behind her. After sitting for a few minutes, the applicant moved towards Mr Nichol and said something as she did so. She was not shouting. She had raised her hands towards Mr Nichol, but Mr Cox insisted that she did not grab him around the neck. It looked as though she was reaching to pull his collar. Mr Nichol had reacted by saying words to the effect of, ‘Don’t you touch my fucking throat’. Mr Cox now realised that ‘something serious’ was happening. The applicant moved back and Mr Nichol directed a closed fist punch at the applicant, although he could not see if it connected. However, the applicant did not fall back.

[78] Mr Cox said that the applicant then came down and sat next to him. She had not said anything and neither had anyone else. He asked her what had happened later in the shift. He had spoken to Patrick twice about what had occurred, although there had been a delay, as Patrick’s records did not reflect he was on shift that night. He had been shown notes made during these meetings, but had not been given a copy.

[79] In oral evidence, Mr Cox confirmed that the physical incident between the applicant and Mr Nichol had occurred during the second smoko on the shift.

[80] Mr Cox was shown notes of a meeting which he attended with Mr Wickham and Mr Roach marked ‘Susan Francis/Paul Nichol incident’. They were expressed as follows:

[81] In cross examination, Mr Cox conceded that Mr Nichol and the applicant could have entered the meal room before him or after him. He could not recall if the applicant was already seated at his table when he sat down. Her dinner was already on the table and he could not remember her getting up to go to the microwave. He had not heard the applicant turn around and say, ‘Don’t you ever talk to me like that again’ to Mr Nichol. He had not heard the applicant say, ‘I’ll punch you in the head’.

[82] Mr Cox had seen the applicant place both her hands near Mr Nichol’s collar region, but could not say exactly where, as his view was blocked. He thought that they were just ‘mucking around’. It could be a type of threatening behaviour and it was only after this point that Mr Nichol reacted by raising his own hand. He had yelled out before punching the applicant with his right hand. They were approximately one metre apart and Mr Nichol had thrown a punch across the table.

[83] Mr Cox insisted he had not spoken to the applicant or anyone else about this incident between its occurrence on 27 November 2013 and his first interview by Patrick on 4 December 2013. He had thought that it was a ‘bit of a joke’ and he had not reported it. He could not recall having seen Mr Nichol’s complaint (see para [20]). He accepted that the notes of his interview of 9 December did not refer to a ‘closed fisted punch’. However, he did not accept a distinction between this and his reference to a ‘punch’. Mr Cox acknowledged that he should probably have reported the incident.

Mr Bradley Gough

[84] Mr Gough has been working at Patrick’s Newcastle operations since August 2011. On most shifts prior 27 November 2013, he had been rostered as a Team Leader, although he has not been rostered as a Team Leader since then and casual employees now fill this role. He is in a ‘relationship of sorts’ with the applicant.

[85] In his written statement, Mr Gough referred to the letter sent to the applicant by Patrick on 16 December 2013 (see para [13]). He explained that on the night shift of 26 November 2013, he had had a two-way radio in his capacity as Team Leader. As Team Leader, he would be ‘keeping an ear on what is going on’. He had not heard the applicant engage in any inappropriate behaviour. He was conscious of any perception of favouritism involving the applicant and would have ‘pulled her up’ if he had. However, he did hear someone say, ‘Shut the fuck up, Suzie’, to which there was no response. He thought someone was just ‘mucking around’.

[86] Mr Gough said that he was present in the meal room during the smoko in which the alleged physical confrontation between the applicant and Mr Nichol took place, but he could not recall if it was at 5:00am or earlier. He was sitting and eating his dinner as a few other people entered the room. The applicant entered, walked up to him and talked to him about log sheets and then went to put her dinner in the microwave. He did not witness the confrontation, as he had gotten up to make himself coffee. Nevertheless, he specifically refuted that the applicant had entered the meal room shouting and walked directly to Mr Nichol. He had heard Mr Nichol say words to the effect of ‘Don’t touch me’ and ‘I’ll have you up for assault.’ Again, he thought that they were just having a joke, as they usually did.

[87] Mr Gough did not believe that there would be any issues that would prevent him from working with the applicant if she were reinstated. He described her as one of the best Tally Clerks at Patrick’s Newcastle port.

[88] In oral evidence, Mr Gough confirmed that he had acted as the applicant’s support person at the first interview and was interviewed by Ms Green and others at a later point.

[89] Mr Gough recalled the applicant calling Mr Gorlicki for assistance over the two-way radio and this was why he knew that the applicant was not ‘shouting insults’ or had called anyone an ‘imbecile’. At some point she had said words to the effect of, ‘Dave Gorlicki whereabouts are you? We need a hand in the shed. Can you come into the shed and give Justin and myself a hand sorting out cargo?’ He thought that the time that Mr Nichol said ‘Shut the fuck up, Suzie’ would have been around 11:00pm and that people were working with steel plate on the wharf at the time. Mr Nichol was working as the Hatch Foreman.

[90] Mr Gough deposed that he had not been in the meal room at the 5:00am break, although he had been there for the first break. At 5:00am, he could recall Mr Nichol and Mr Mackerras were discussing shift extensions under the enterprise agreement. Mr Nichol had called Mr Williams and then Mr Outram from the Union, at around this time.

[91] It was Mr Gough’s evidence that when he had heard Mr Nichol say ‘Don’t ever touch me again’, he had turned around and saw Mr Nichol ‘ranting and raving’, but there was nobody near him. The applicant was standing two metres away from Mr Nichol. Mr Nichol had repeated ‘Don’t ever touch me again’, two or three times. Mr Gough said something like, ‘Some people have got to pay for that’ as a joke. He left the room.

[92] Mr Gough expected that where members of the Union have a grievance with each other, they would usually go to the Shift Delegate. If the Shift Delegate was unsuccessful in resolving the difficulties, it would be brought to the attention of more senior Union officials.

[93] Mr Gough was shown notes of a meeting between the applicant and Mr Wickham with Mr Ryan. Mr Gough had attended as the applicant’s support person (see para [25]). The notes had not been read to him, but he had signed them at the time. He and the applicant had both had very little sleep. He had actually called the Operations Manager to postpone the meeting as he felt that the applicant was in no state to participate, but she later said she just wanted ‘to get it over and done with’ and they attended. The applicant had been crying throughout the interview. Mr Gough claimed that the applicant had gestured rather than actually sworn in the interview when she referred to the comments directed to her over the two-way radio. She had substituted the word ‘fuck’ with ‘eff’ as she did not want to swear in front of management. Mr Nichol’s complaint had not been read to them and their request to view it was refused. After they left the room, Mr Wickham had called out to them in the hallway and asked them to sign the notes. He and the applicant had done so, but the applicant was ‘an emotional wreck’. In any event, he did not believe it was a complete record of the interview.

[94] Mr Gough was shown a document said to be reflective of rosters. He said that he had attended a shift on the evening of 27-28 November 2013. In later evidence, Mr Gough agreed that the roster appeared to demonstrate that the applicant had also been on a shift on the evening of 27-28 November 2013.

[95] Mr Gough agreed he had prepared and circulated a petition in support of the applicant (see para [49]). Mr Paul Curtley, who was on night shift, had also organised for a number of people to sign it.

[96] In cross examination, Mr Gough emphasised his impartiality, despite his ongoing relationship with the applicant. He had not seen her witness statement and he could not say whether she had seen his statement.

[97] Mr Gough did not accept that calling someone an ‘imbecile’ over the two-way radio would be abusive, but agreed that it would be inappropriate. In any event, he had not heard the applicant call Mr Gorlicki an imbecile. There was not much talk over the two-way radio that night and some workers on the ship were using hand signals, rather than the two-way radio as the area was well lit. The applicant had said ‘Dave Gorlicki, where are you? Can you come into the shed and help Justin’ rather than ‘Are you going to bring that forklift into the shed or what?’ He believed that these comments amounted to pretty much the same thing. He agreed that there had not been a supervisor on this particular shift and he was the highest ranking member of the team on the shift.

[98] Mr Gough elaborated that he had heard someone say ‘Shut the fuck up, Suzie’ about one hour before the first break, at about 11:00pm. He had not known it was Mr Nichol at the time. He accepted that this was inconsistent with the notes made of his interview on 10 December 2013, which set out that this had occurred at about 3:00am. He had read and signed these notes without amendment. He could have missed it and noted that the date of the notes was also incorrect in that they set out that the interview occurred on 10 December 2013. He believed that it had taken place in January 2014 as it had been ‘well over a month’ after the incident. In fact, he had complained about the delay to Ms Green and Mr Wickham.

[99] Mr Gough agreed that he had referred to the applicant as ‘feisty’ in the interview with Ms Green because she was outspoken and stood up for what she believed in. This did not mean she would be forceful to the extent of assaulting someone. Mr Gough accepted that he could not give evidence about whether a physical incident had occurred between the applicant and Mr Nichol in the meal room, as he had had his back turned to them. Mr Nichol’s voice had been raised, but he did not sound angry or aggressive. He accepted that Mr Nichol saying ‘Don’t touch me’ was likely to be in response to being touched.

[100] Mr Gough acknowledged that he had attended training in relation to bullying and harassment conducted by Ms Green in September 2013 and that this training set out the requirement for respectful behaviour. He had been responsible on the night of 26-27 November 2013 for reporting inappropriate behaviour and the comment, ‘Shut the fuck up, Susie’ should have been reported. However, Ms Green had emphasised at the training that they should try to resolve little incidents and he classed this one in that category.

[101] Mr Gough agreed that he was unaware of what Mr Curtley may have said to persons signing the ‘petition’ in support of the applicant (see para [49]). He was disappointed in the conduct of Mr Nichol and Mr Carter in relation to this matter. He did believe they had lied, but had rather exaggerated the issues. He agreed that he had published the following comments on his Facebook account:

[102] Mr Gough did not accept that the applicant would experience difficulty if she returned to the workplace, as they were all professionals. He accepted that there had been unprofessional interactions. He then said:

[103] In re-examination, Mr Gough said he had had discussions with Mr Grech about complaints concerning his rostering and criticised Mr Carter for having gone ‘straight to the boss’. Mr Grech had not been happy with the applicant because she was going to bring some of his rostering practices to the Committee’s attention. He also thought other people on the Union Committee might not have liked the applicant.

For the respondent

Ms Tamara Green

[104] In written evidence, Ms Green referred to the Asciano Group’s Code of Conduct and stated that she had given a presentation on the code, the ‘Asciano Values’ and the Bullying and Harassment Policy. The complaints process under this Policy sets out that a complaint should be made to the employee’s direct manager, then the ‘two up’ manager and, if not resolved, then with a Human Resources representative.

[105] Ms Green explained that she became aware of the allegations of physical and verbal assault involving the applicant in the course of a phone conversation with Mr Wickham at approximately 7:30am, 28 November 2013. She had told Mr Wickham that an investigation needed to occur.

[106] Ms Green described her participation in a series of interviews of Patrick personnel on 9 and 10 December in relation to these allegations. Mr Wickham had prepared a summary arising from previous interviews he had conducted and Ms Green used this as a guide. She no longer had a copy of this document. Mr Outram was present in each of these meetings as a support person. Mr Carter attended with Mr Nichol and Mr Gough had declined to have a support person.

[107] Ms Green claimed that in the course of each interview on 9-10 December 2013, Mr Wickham would read out a copy of the previous statement given by each person and each person confirmed that this statement was correct. They were also asked if a diagram setting out the locations of people in the meal room was accurate. Ms Green took notes during these interviews and showed them to each interviewee for them to read and sign. None of the interviewees asked for a copy of these notes. They were annexed to her statement in this proceeding. Ms Green used these notes to prepare a document, which she said established the following:

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

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

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

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

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

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

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

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

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

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

[108] As a result of their inquiries, Ms Green and Mr Wickham made a preliminary finding that the applicant had been shouting aggressively at operators over the two-way radio and that Mr Nichol had said, ‘Shut up Suzie’. Subsequent to this, the applicant had walked straight up to Mr Nichol in the meal room and said ‘Don’t you ever speak to me like that again’. She grabbed his throat, while Mr Nichol remained seated. He flicked her hands away, saying ‘Don’t put your hands on my throat again.’ Ms Green then prepared a letter for Mr Wickham on 16 December 2013 requiring the applicant to attend a show cause meeting on 19 December 2013 (see para [13]).

[109] Ms Green then prepared a document for Mr Wickham in the lead up to the meeting on 19 December 2013 with a list of questions for the applicant. The meeting was conducted with the applicant (who had provided a written response to the allegations), herself, Mr Wickham and Mr Outram. Mr Wickham made notes throughout this meeting. Mr Outram had raised concerns in relation to the length of time the process was taking. However, Ms Green had emphasised the need for due diligence. During a short break, Mr Wickham and Ms Green read the applicant’s written response and then told her that she would be called the following day to organise a further meeting. Ms Green emphasised that no findings had been made at this point. The meeting was subsequently arranged for 9 January 2014.

[110] The same persons attended the meeting on 9 January 2014 and Mr Wickham again made notes. Ms Green explained that the meeting was held at the Newcastle Stevedores offices as Patrick’s Newcastle offices were being painted. The only other available venue would have been the meal room and it was thought that this venue would be inappropriate. At the meeting, the applicant claimed she had not used abusive or foul language over the two-way radio and that there had been no lift in progress when she had been told to ‘shut up’. She further claimed that she had been seated in the meal room before approaching Mr Nichol. She had said, ‘By the way don’t you ever talk to me like that again’. Mr Nichol had responded by saying, ‘What are you going to do about it?’ When she ‘encroached in Mr Nichol’s space’, he had punched her.

[111] Ms Green described the applicant suddenly using herself as a ‘puppet’, in that she had sought to move Ms Green’s arms to establish what had occurred between herself and Mr Nichol. Ms Green said she was surprised by this and felt that it was inappropriate. When the applicant had started to cry, Ms Green had offered her a break. However, she and Mr Outram insisted they continue. The applicant had also complained as to shift allocations and her perceptions that she was being treated unfavourably. At the conclusion of the meeting, the applicant was told that she would be informed of a result after consultation with more senior people in Patrick had occurred. The applicant’s suspension on pay was maintained.

[112] On 10 January 2014, Ms Green sent an email to Mr Sommer setting out the findings of herself and Mr Wickham as follows:

[113] Mr Sommer subsequently sent Ms Green an email confirming that he had discussed the matter with Mr Philip Tonks, Director. They both had agreed with the recommendation to terminate the applicant’s employment. The applicant was informed of this at a meeting on 14 January 2014 and handed a letter (see para [3]).

[114] Ms Green referred to the applicant’s statement and denied having met with Ms Michelle Myers in relation to this matter. Nor could she remember Mr K Roach attending a meeting with herself and the applicant. The reason that Mr Nichol had not been stood down was that it had been determined that he had not engaged in misconduct requiring that he be stood down.

[115] Ms Green highlighted the ‘admission’ by the applicant that she had assaulted Mr Nichol, a loss of trust and confidence between the parties, the non compliance with Patrick’s policies and Patrick’s health and safety obligations as reasons why the applicant should not be reinstated.

[116] In further oral evidence, Ms Green was shown an allocation work sheet. She explained that it set out that if the bulk of a shift was in one day, it would be listed on that day, even if that was not the day the shift actually finished.

[117] In cross examination, Ms Green agreed that her lack of direct involvement in the meetings of 28 and 29 November 2013 meant that she relied on Mr Wickham’s notes and her discussions with him in taking those meetings into account. Ms Green agreed that Mr Sommer was not directly involved in the investigation and she had provided information to him by way of the email on 10 January 2014 (see para [112]). She understood he would be relying on this in making his decision.

[118] Ms Green could not recall as to whether the text of Mr Nichol’s complaint had been put to Mr Gough in the interview with him on 9 January 2014. She now accepted that her statement in the email that the applicant had grabbed Mr Nichol by the throat while shouting ‘was confirmed by a number of employees’ was not correct in that it was not sufficiently specific. However, she insisted that her statement that ‘the allegations that had been put forward by Paul Nichol have all been validated by numerous individuals’ was correct. She now accepted that Mr Nichol’s statement that the applicant had been ‘shouting insults’ or called anyone an ‘imbecile’ over the two-way radio was not corroborated by anyone. She could not recall specifically asking Mr Gorlicki questions on these points.

[119] Ms Green initially believed that Mr Ferguson’s statement at the meeting with Mr Wickham that the applicant had given Mr Gorlecki, ‘a bit of a spray’ was corroborative of Mr Nichol’s statement that the applicant had shouted aggressively over the two-way radio over a number of minutes. ‘What are you doing? Come and give us a hand’ could be said in an aggressive tone, but could not be said to be corroborative of shouting aggressively over the radio over a number of minutes. She now conceded that Mr Nichol’s allegations that the applicant had been aggressively shouting insults over the two-way radio was not corroborated. In fact, it could be said that Mr Ferguson’s view generally corroborated the applicant’s evidence. Mr Nichol had never been disciplined for saying ‘Shut up, Suzie’ over the two-way radio.

[120] Ms Green initially asserted that Mr Nichol’s allegation that the applicant had ‘stormed’ into the meal room while shouting and then walked up to him was corroborated by Mr O’Connell. On review, she accepted that Mr O’Connell’s characterisation of them ‘clowning around’ was not corroborative of Mr Nichol’s allegation at all. None of her notes (other than those arising out of the interview with Mr Nichol) referred to the applicant threatening to punch Mr Nichol in the head. She now conceded that she would probably have made a note if any of the interviewees had made reference to this observation. In fact, the size of the room meant that if the applicant had shouted, everyone would have heard her and this was contrary to what they had said in their interviews.

[121] Ms Green maintained, however, that Mr O’Connell’s statement corroborated Mr Nichol’s view that the applicant had walked directly up to him, though she accepted that she would have come through a door to which Mr O’Connell had his back. In fact, the note she had made during the 9 December 2013 interview with Mr O’Connell quoting the applicant saying, ‘Nicko, don’t ever talk to me over the radio like that again’ was corroborative of the applicant’s evidence. On reflection, Mr O’Connell’s responses in the interviews were corroborative of significant parts of the applicant’s account.

[122] Ms Green was taken to the notes of interviews with Mr McIntyre and accepted that his references to the applicant ‘cuddling’ Mr Nichol or her having two hands around his throat were not corroborative of Mr Nichol’s allegation that the applicant had had one hand around his throat with another held up as if to strike him. There was no other account to corroborate this. Nor was Mr Nichol’s account of not having touched the applicant consistent with Mr McIntyre’s recall that he had ‘flicked’ the applicant’s hands away. In any event, Mr McIntyre had said that the applicant had not ‘stormed up’ to Mr Nichol. Ms Green now accepted that Mr McIntyre’s interviews were not corroborative of Mr Nichol’s allegations.

[123] Ms Green explained her view that the applicant had changed her version of her events a number of times. She and Mr Wickham had noted inconsistencies as to whether Mr Nichol had said ‘Shut up’ or ‘Shut the fuck up’. At one time she said she had asked Mr Gorlicki to come into the warehouse to assist, at another she claimed she had said ‘Are you coming in here or what, Gorlicki’. Ms Green identified another inconsistency in that the applicant said she had spoken to other people in the meal room before approaching Mr Nichol. Ms Green also considered the applicant’s differing account of being punched in the neck or being punched in the chin and ricocheting into her throat, as another inconsistency. She now accepted that these inconsistencies did not strike at the core of the applicant’s account and her characterisation of them in the letter to Mr Sommers was misleading. She maintained that the applicant statement that she had ‘lightly touched’ Mr Nichol on the chest was an admission of assault.

[124] In response to a question from me, Ms Green confirmed that she had not previously been involved in an investigation involving allegations of assault where an employee had been dismissed, although she had been involved in other investigations which had led to the dismissal of an employee.

[125] In re-examination, Ms Green said that she or Mr Wickham would have read the notes from Mr McIntyre’s initial interview to him in the subsequent interview.

Mr Scott Young

[126] In written evidence, Mr Young deposed that he had been in the meal room during a break in the shift on 27 November 2013 at approximately 5:00am. He had seen the applicant and Mr Nichol. The applicant was standing and Mr Nichol remained seated. He had heard heated words, but could not recall them exactly. However, he recalled that Mr Nichol had said ‘Don’t put your fucking hands on my throat again’. The applicant then walked out of the room.

[127] Mr Young said that he was interviewed by Mr Wickham and Mr Ryan on 29 November 2013, although he did not have a support person. He attended a further interview with Mr Wickham and Ms Green on 9 December 2013. He had signed the notes of both meetings.

[128] In cross examination, Mr Young confirmed that he had not had a two-way radio on the ‘dog watch’ shift on 26-27 November 2013.

[129] Mr Young was referred to the notes made of his interview on 9 December 2013. He agreed that he had been surprised at the confrontation between the applicant and Mr Nichol as they generally ‘got on’. He explained that he had heard Mr Nichol say ‘Don’t put your fucking hands around my throat’ and then looked up and saw the applicant walking away. It was possible that the applicant had sat down again rather than left the room. That was all he had heard. Mr Young said that he was about 1 � to 2 metres away from Mr Nichol at the time.

[130] Mr Young agreed that if someone had been walking down the aisle of the small meal room, ‘shouting at the top of their voice’ they would have been easily heard. He was quite sure that the confrontation had occurred during the second smoko break.

Mr Justin Ferguson

[131] Mr Ferguson gave written evidence that during the night shift on 27 November 2013, he had heard the following exchange over the radio:

 

Applicant:

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

 

Mr Nichol:

Shut up Suzie.

 

Applicant:

Don’t tell me to shut up, David.

 

Mr Gorlicki:

It wasn’t me who said it.

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

[132] Mr Ferguson was interviewed by Mr Wickham and Mr Ryan on 28 November 2013, although he did not have a support person. He attended a further interview with Mr Wickham and Ms Green on 9 December 2013. He had signed the notes of both meetings.

[133] In cross examination, Mr Ferguson was referred to the notes made of his interviews on 28 November and 9 December 2013. He clarified that when he said that the applicant had given Mr Gorlicki a ‘bit of a spray’ he was referring to her saying, ‘David, what are you doing? Get in here and give us a hand.’ The applicant had not been shouting or behaving aggressively. It had not gone on for ‘minutes’. He now could not recall whether the latter exchange between the applicant and Mr Gorlicki had been in person or over the two-way radio, although he agreed his notes of 9 December 2013 appeared to reflect that Mr Gorlicki had brought his forklift around to the shed. He could not recall whether the exchange had occurred before the first or second smoko breaks. Mr Ferguson could not recall having had discussions with other crew during or after the relevant shift about the incident between Mr Nichol and the applicant in the meal room. He had not wanted to get involved.

Mr Bruce McIntyre

[134] Mr McIntyre’s written evidence was that he had worked a 7:00pm-7:00am shift on 27 November 2013 and that he did not know any of the people he was working with, other than Mr Jake Roach.

[135] Mr McIntyre stated that at approximately 5:00am, he had been in the meal room, sitting adjacent to the door. He had seen Mr Nichol seated and the applicant standing either beside or behind him. He had initially thought she was ‘hugging’ Mr Nichol, but then realised she had two hands around his throat. Mr Nichol had, in a non-aggressive fashion, brought up either one or both of his hands to take the applicant’s hands off his throat. He had said something like, ‘Don’t do that again’. The applicant then moved away.

[136] Mr McIntyre was interviewed by Mr Wickham and Mr Roach on 29 November 2013. He attended a further interview with Mr Wickham and Ms Green on 9 December 2013. He did not have a support person at the meeting of 29 November 2013, but Mr Outram had attended with him on 9 December 2013. He had signed a copy of the notes of 29 November 2013.

[137] In cross examination, Mr McIntyre confirmed that the shift of 27 November 2013 was only his second shift with Patrick and he had no idea of the relationships between people on that shift. He had worked with Mr Nichol for the whole of that shift. He could not recall if he had worked the following night or if he had worked with Mr Nichol that night. He probably would not have communicated much with Mr Nichol because he generally kept to himself and he had not been there long. He could not say whether there was much discussion by the crew about the altercation between the applicant and Mr Nichol and he had not discussed the incident with anyone prior to his interview on 29 November 2013.

[138] Mr McIntyre was referred to the notes made of his interviews with Patrick and explained that he had thought the applicant was giving Mr Nichol a ‘cuddle’. However, he then saw her hands move to his throat. It was possible that her hands were at his collar. He had definitely not seen her with one hand on Mr Nichol’s throat and another raised to strike. Mr Nichol had said, ‘Don’t do that’ in a raised voice. These were the first words he heard. Mr Nichol had ‘flicked’ up his hands to remove the applicant’s hold on him, but it was possible that he threw an arm out in front. In any event, Mr Nichol had made contact with the applicant, although not aggressively. Mr McIntyre was unclear as to whether the applicant was behind or to the side of Mr Nichol.

[139] Mr McIntyre stated that he had not heard the applicant shout a threat at Mr Nichol. He conceded it would have been obvious if this had occurred as it was a small room. Nor had he witnessed the applicant ‘storm up’ to Mr Nichol. She had walked up to him.

[140] Mr McIntyre was unclear as to whether the confrontation had occurred during the first or second smoko break. He accepted that the time was put to him by Patrick and he had agreed to it. He thought it was probably 5:00am, but it could have been on either break.

[141] In answer to a question from me, Mr McIntyre agreed that this was his first job on the waterfront.

[142] In re-examination, Mr McIntyre clarified that he had seen a ‘cuddle’ and had then observed Mr Nichol’s hands ‘flick up’.

Mr Andrew Wickham

[143] Mr Wickham has been Newcastle Site Manager for Patrick since October 2013. In written evidence, he said that Mr Scott Carter, the Union’s Site Delegate attended his office with Mr Nichol at 7:15am on 28 November 2013 to advise that there had been a physical incident the previous morning. He told Mr Nichol to provide a written incident report and that he would return to the site at 7:00pm to conduct interviews. The applicant would be suspended on pay. He left a message for Mr Outram at approximately 7:30am and then contacted Ms Green to ask her to attend the interviews that night. Mr Wickham referred to diary notes supporting these flow of events.

[144] Mr Wickham stated that the written incident report from Mr Nichol was given to him at approximately 7:30pm. It set out that the applicant had been shouting aggressively at a forklift driver, that she had ‘stormed into’ the meal room at 5:00am shouting, ‘If you tell me to shut up again I will punch you in the head’ and, still shouting, she had grabbed Mr Nichol by the throat.

[145] Mr Wickham explained that the ‘first phase’ of the investigation was mostly conducted by him and that the ‘second phase’ was conducted by both him and Ms Green. The first interview with the applicant had taken place at 7:30pm on 28 November 2013. Mr Michael Ryan attended in his capacity as Patrick’s Continuous Improvement Manager and Mr Gough attended as the applicant’s support person. When asked at the commencement of the interview, the applicant said she did not want the Union involved. She stated the following:

‘(a) at around 3am, she heard a person say over the radio “Shut up Suze”. She had challenged the forklift driver (Mr David Gorlicki) about the comment and was told it was made by Mr Nichol;

(b) at around 5am, she was sitting in the lunchroom and turned around to Mr Nichol and said to him “Don’t you ever talk to me that [sic] again I will smack you”;

(c) Mr Nichol then said “go on then”;

(d) she then walked over the Mr Nichol [sic] and touched him under the chin;

(e) Mr Nichol then punched her in the neck’

[146] Mr Wickham said that the applicant then listed a number of people who had witnessed the incidents. The applicant had put to him that the reason the allegations were being made was because of her own complaint in relation to rosters, but he had not been aware of any such complaint. He read his notes aloud to the applicant and she and Mr Gough signed the document, but did not ask for a copy. He noted that the applicant had asked him to add the words ‘and will smack you’. He informed the applicant that she was suspended on pay. Mr Wickham denied that the applicant had used the word ‘fuck’ as he would have made a note of this. The applicant had not sought to defend herself. He denied that she was told that Mr Nichol had been stood down.

[147] Mr Wickham described his interviews with Mr Mackerras, Mr Young, Mr Gorlicki, Mr Ferguson, Mr J Roach and Mr O’Connell on 28 November 2013. Mr McIntyre was interviewed on 29 November 2013 and Mr Nichol was again interviewed on this day with Mr Carter and Mr K Roach acting as his representatives. Mr Nichol denied that he had punched the applicant in the throat and repeated his allegation that the applicant had ‘stormed straight in’.

[148] Mr Wickham recalled having spoken to the applicant again by telephone on 29 November 2013 with Mr K Roach sitting in on the conference call. The applicant was invited to a further interview on 2 December 2013, although this meeting was subsequently conducted on 4 December 2013, with Mr Outram, Mr K Roach and Ms Michelle Myers of the Union in attendance. At this meeting, it was determined that Mr Cox and Mr O’Connell should also be interviewed. When Mr Outram expressed his dissatisfaction at the late involvement of the Union, Mr Wickham had replied that the applicant had initially indicated that she did not want the Union involved. The applicant and Mr Outram were shown copies of records setting out that the applicant had attended harassment and bullying training in September 2013. The applicant had provided a diagram setting out where people had been seated in the meal room on the night of the incident. The applicant was informed that her suspension on pay would continue.

[149] Mr Wickham conducted an interview with Mr Cox later that day. He acknowledged that Mr Cox had supported the allegation that Mr Nichol had punched the applicant, but noted that he said that he did not think that the punch was ‘going to connect’. He did not investigate this matter any further because Mr Nichol’s allegations were corroborated by other witnesses.

[150] Mr Wickham and Ms Green had conducted further interviews on 9 and 10 December. This involved him reading out a copy of the statement previously given by each person and each person confirming the correctness of that statement. Ms Green took notes throughout these interviews, read her notes aloud to each interviewee and asked them to sign her notes. All of them did so.

[151] Mr Wickham set out some additional comments made by interviewees on 9-10 December 2013. Mr McIntyre now said that Mr Nichol had ‘non-aggressively’ flicked the applicant’s hands away from his throat and that she was standing beside or behind Mr Nichol. Mr Young confirmed that the applicant was not seated. He had heard Mr Nichol say, ‘Don’t put your hands around my throat’ and he had looked up and the applicant had been walking away. Mr Cox confirmed his statement that he had seen Mr Nichol throw a punch, but he thought that they were ‘playing around’. Mr Mackerras revised his statement to say that he could not recall anyone walking into the room screaming. Mr Gorlicki had said that he could not recall exactly what Mr Nichol had said over the two-way radio, except that it was ‘cheeky’. He couldn’t recall whether the applicant had been in the meal room. Mr O’Connell recalled that the applicant had walked through the door saying, ‘Niko don’t ever talk to me over the radio like that again’. Mr J Roach and Mr Gorlicki were also reinterviewed.

[152] Mr Nichol was interviewed on 10 December 2013. Mr Nichol explained that the applicant had called someone an ‘imbecile’ over the two-way radio over a period of time. As he had needed the two-way radio to direct the crane operator, he had told the applicant to ‘shut up’. He had no further interaction with her until she stormed into the meal room saying, ‘If you ever tell me to shut up again, I will punch you in the head’. His hands were raised in response to her aggression. He was sitting down at the time.

[153] Mr Gough had confirmed that he had heard someone say, ‘Shut the fuck off [sic] Suzie’ over the two-way radio at approximately 3:00am. He had heard Mr Nichol say ‘Don’t touch me’ when he had been in the meal room but thought Mr Nichol was joking. He could not recall anything else. He could not recall who had been sitting or standing in the meal room.

[154] Mr Wickham had sent a letter to the applicant on 16 December 2013 (see para [13]) directing her to attend a meeting on 19 December 2013. At that meeting, the applicant had provided a written response. He had told her that the response would need to be considered. Mr Outram complained as to the length of time the investigation was taking. After a short break, the applicant was told that she would be advised the following day as to when the next meeting would be held and that it was unlikely to be before 6 January 2014. It was subsequently arranged for 9 January 2014.

[155] On 9 January 2014, Mr Wickham and Ms Green had asked questions according to a document prepared by Ms Green and others. The applicant stated that she had not used abuse or foul language over the two-way radio and that there had been no crane lift at the time that she had been told to ‘shut up’. She had been seated in the meal room, had got up to go to the oven and had said, ‘By the way don’t you ever talk to me like that again’ to Mr Nichol, who had responded, ‘What are you going to do about it?’ She moved towards Mr Nichol and Mr Nichol punched her. She attempted to use Ms Green as a ‘puppet’ to demonstrate how she had touched Ms Green, who appeared shocked at this approach. She again raised the issue of unfair rosters as underlying the dispute. The applicant was then told that she would be informed of Patrick’s decision at a later date and that she would remain suspended on pay.

[156] On 13 January 2014, Mr Wickham had another meeting with the applicant, Mr Outram and Ms Green. He read out the letter which confirmed that she was to be terminated effective 14 January 2014 (see para [3]).

[157] Mr Wickham believed that reinstatement would be inappropriate as the applicant had described the Stevedoring Manager (Mr K Roach) and the Stevedore responsible for rostering (Mr Grech) as untrustworthy. Her claims about delegates conspiring against her were unfounded. Additionally, her assault of Mr Nichol would make the workplace difficult, if she returned.

[158] In cross-examination, Mr Wickham did not accept that it was unusual for a wharfie to make a complaint to management in the company of a Union official.

[159] Mr Wickham could not recall the exact words he used when offering the applicant the opportunity to be represented by the Union at the meeting of 28 November 2013. He thought it would have been in terms similar to ‘Do you want Mr Outram as your representative’.

[160] Mr Wickham agreed that his notes of his interviews were not a transcript. He had recorded the salient points. Where he used inverted commas, this was likely to have been a quote. He had not raised the applicant’s allegation of Mr Nichol punching the applicant in any of the interviews he had conducted with the other witnesses on 28 November 2013, but agreed that Mr McIntyre had alleged some physical contact. He had asked, in general terms, what had occurred. He admitted that she had alleged a history of harassment from Mr Nichol. However, she had not previously reported it.

[161] Mr Wickham was familiar with the dimensions of the meal room and acknowledged that it would have been difficult for people there not to have heard someone shouting at the top of their voice when they entered the room.

[162] Mr Wickham accepted that the interviews of Mr Gorlicki and Mr Mackerras were not actually corroborative of either the applicant’s or Mr Nichol’s version of events. He was not sure whether Mr Gorlicki’s reference to the applicant being ‘heated’ referred to the physical confrontation with Mr Nichol or her initial approach to Mr Gorlicki in the shed. Mr Ferguson had referred to the applicant giving Mr Gorlicki ‘a bit of a spray’, rather than ‘shouting very aggressively’ over a number of minutes. It was possible he had observed the exchange between Mr Gorlicki and the applicant in the shed. This was corroborative of the applicant, rather than Mr Nichol.

[163] Mr Wickham conceded that Mr O’Connell had referred to an exchange between the applicant and Mr Nichol, but he had not referred to the applicant ‘storming in shouting at the top of her lungs.’ This was inconsistent with Mr Nichol’s version of events and, to the extent that it provided any information, was consistent with the applicant’s version of events. He now accepted that none of the persons he interviewed on 28 November 2013 corroborated Mr Nichol’s version of events and, in separate ways, corroborated the applicant’s account.

[164] Mr Wickham could not say why Mr Nichol had not been suspended after the applicant’s allegations of assault, although he did not accept a proposition that he had assumed Mr Nichol’s account was true at this point. He now accepted that he had not sought to test the allegations made by the applicant in these interviews. Nor had he directly asked Mr Gorlicki if the applicant had ‘shouted insults’ at him.

[165] Mr Wickham was referred to his notes of Mr McIntyre’s interview on 29 November 2013. He accepted that Mr McIntyre’s reference to the applicant ‘cuddling’ Mr Nichol was not consistent with Mr Nichol’s account, except to the point of physical contact, which had never been denied by the applicant. The allegation as to the applicant having two hands around Mr Nichol’s throat came one and a half shifts later and was not consistent with Mr Nichol’s account that the applicant had one hand on his throat and another raised as if to strike him. It was possible that if her hand was near Mr Nichol’s collar, it might have appeared that she had her hands around his throat. This could be seen as corroborative of the account of the applicant, rather than that of Mr Nichol. Nor was Mr McIntyre’s account of Mr Nichol ‘flicking’ or ‘pushing’ the applicant in defence, consistent with Mr Nichol’s statement that had raised his hands in response. Mr Cox’s account that he had seen a punch thrown corroborated the applicant’s account of a punch towards her.

[166] In answer to a question from me, Mr Wickham agreed that after these interviews, he did not feel he needed to investigate the matter any further. He had formed the view that Mr Nichol’s version was the correct one. However, Patrick had continued with the investigation and another period of review, after Ms Green and HR became involved.

[167] Mr Wickham acknowledged that after the interviews of 28 November 2013 had been completed, he had called the applicant to tell her that she was invited to come back to work the following shift as there was no corroboration of Mr Nichol’s version of the events.

[168] In re-examination, Mr Wickham clarified that his role in the decision to terminate the applicant was by way of assisting Ms Green with the final interviews. The decision itself was made by a senior manager.

[169] Mr Wickham said that in each of the interviews, he had brought the relevant witness in, asked them if they wanted representation, read out the complaint of Mr Nichol and then worked through both of the incidents.

Mr Paul Nichol

[170] Mr Nichol has been employed by Patrick in 2004 and by Patrick in Newcastle since 2012. In written evidence, Mr Nichol said that he had worked on the 7:00pm-7:00am shift on 26-27 November 2013 as Hatch Foreman. He was in the hold of the ship directing the Crane Operator in relation to lifts, for which he had a two-way radio attached to his chest.

[171] Mr Nichol deposed that at 3:00am, he heard the applicant using derogatory language to a forklift driver over the two-way radio, including calling him an ‘imbecile’. Although he was not aware of who she was talking to, he said, ‘Shut up Suzie’ over the two-way radio. There was no response. Mr Nichol denied having said, ‘Shut the fuck up Suzie’. Mr Nichol claimed that he had told the applicant to ‘shut up’ partly because of the inappropriate nature of her comments and partly because her talking over the two-way radio was a distraction from his work ensuring the safe and effective lift out of the ship.

[172] Mr Nichol stated that he had not had any further contact with the applicant on that shift until approximately 5:00am in the meal room. He was sitting and eating in his usual spot when the applicant entered the room and shouted from the doorway, ‘If you tell me to shut up again I will punch you in the head.’ She then moved towards him, grabbed him by the throat with one hand and had the other hand up ready to strike him. She was still yelling, but he could not remember what she was yelling. He raised his own hand, but did not touch her. After she let go, he said ‘Never grab me again’ two or three times. He denied having said ‘Come on, come on then’ or that he had punched the applicant.

[173] Mr Nichol said that he was particularly upset by this incident and he had expected her to apologise to him at the next shift. However she did not say anything to him. He denied having spoken to her since the confrontation in the meal room. He made a written statement to Mr Wickham at the end of the shift (see para [20]). He was subsequently interviewed by Mr Wickham and Mr Ryan on 29 November 2013 and then again by Ms Green and Mr Wickham on 9 December 2013. Mr Carter attended both meetings with him.

[174] Mr Nichol said he could remember having been out with the applicant, but he denied that she had paid for the cruise tickets for either him or his girlfriend. Nor could he recall ever hitting her on the top of her helmet. He accepted the applicant’s evidence that he had referred to her as a ‘ranga’ and made comments about whether ‘the carpet matched the curtains’, but said that there was a fair amount of banter on the wharf. He also accepted that he had had an aggressive encounter with Mr O’Connell over the two-way radio when he had failed to follow instructions. This had resulted in goods being dragged across other goods in the hold. Even so, they had shook hands at the end of the shift.

[175] In cross examination, Mr Nichol said that he had worked on the waterfront since 2000 and he had been a member of the Union from that time.

[176] In relation to the incident where he had referred to the applicant as a ‘ranga’, Mr Nichol explained that it was in the nature of the waterfront workforce that they made a lot of jokes, teased each other and called each other names. He stressed that this conversation had started with the applicant having said some inappropriate sexual comments about his relationship with his girlfriend. He denied that this exchange occurred over a two-way radio as he was working on the wharf and did not have a two-way radio that day. He could not remember whether the jokes about the colour of the applicant’s pubic hair went on for a number of weeks.

[177] Mr Nichol denied that he and the applicant had been friends. He had attended Mr Gough’s birthday because of him, not the applicant. However, they had been friendly until he became aware of the applicant’s ‘violent tendencies’.

[178] Mr Nichol agreed that telling someone to ‘Shut the fuck up’ over the two-way radio would be inappropriate. However, telling someone to ‘Shut up’ over the radio was appropriate when he needed the two-way radio to be clear so that he could do his job safely. He confirmed that the applicant’s abuse went on for a few minutes, but he could not remember the exact words. It was inappropriate as she was implying Mr Gorlicki was an imbecile. He had not referred to his need for the two-way radio to be clear in his original statement, because this was a ‘given’ in the workplace. He denied he had said ‘Shut the fuck up’ because he wanted Mr Gorlicki to clear the wharf. He did not accept that his evidence on this point was exaggerated. He suggested that he was thinking more clearly when he had his second interview, as he was not as fatigued.

[179] Mr Nichol acknowledged that he had worked a shift after the one in which the incident occurred and before making his complaint. He had not raised his complaint with the Shift Delegate (Mr Mackerras) or his Team Leader (Mr Gough) on either of those shifts. He denied that the reason for this delay was that had not been going to make a complaint until he had heard the applicant had been asking other employees about the incident. He had been hoping that the applicant would apologise. Instead, he had gone to Mr Carter, because he had known him for 15 years and he was an experienced delegate. He denied he had approached Mr Carter because he was someone who was unsympathetic to the applicant. He had known that Mr Carter would support him, though he had tried to talk him out of making the complaint. He was unclear as to when he had called Mr Outram or how he had got his number. He could remember the discussion about 12 hour shifts, but could not remember if it had been on the same night.

[180] Mr Nichol accepted that Mr Mackerras and Mr Cox were the two employees closest to him in the meal room at the time of the incident. He had forgotten to identify them when he listed the people who could help Mr Wickham with his investigation, because he was upset at being grabbed by the throat.

[181] Mr Nichol denied that the applicant had said, ‘Don’t you ever talk to me like that over the radio again’. She had screamed at him from the door, ‘If you ever tell me to shut up again, I’ll punch you in the head’, before moving towards him. He accepted that everyone in the meal room would have heard this, but they might not have wanted to be involved or they could have been asleep. He could not remember responding verbally to her. He denied he had been ‘baiting’ her. He accepted that he had not referred to her having grabbed him around the throat with one hand, with the other hand raised, in his initial complaint, but he had been exhausted and upset. He denied having touched the applicant; his hands had come up to his shoulders as a reaction, but he was conscious that he did not want to hit a woman or lose his job. He then said he had raised only one hand as he may have been eating with his other hand.

[182] In re-examination, Mr Nichol explained that at the time he had told the applicant to ‘Shut up’, they had been discharging steel coil from the hold, which were heavy, round and slippery. He would have been busy, even if there was a delay on the wharf, double checking the straps were cut and pulled out.

[183] Mr Nichol claimed that raising his hand or hands was a normal reaction to having someone grab his throat.

[184] Mr Nichol could not recall having ever spoken to the applicant about her concerns with the Consultative Committee, although there had been ‘rumblings’ about the election. For his part, he could not see how the election could have been tampered with.

Mr Warwick Sommer

[185] Mr Sommer has been employed by PSL Services Pty Limited, a related entity to Patrick, since 30 September 2013. He is responsible for the operation and management of 15 business units in Patrick’s stevedoring business.

[186] In written evidence, Mr Sommer explained that he became aware of allegations against the applicant after a telephone conversation with Mr Dene Ladmore, Eastern Region Manager - Patrick Stevedoring on or about 28 November 2013. Mr Ladmore told him that he had directed Mr Wickham to conduct an investigation with Ms Green. He received regular updates from them, leading up to an email in which Ms Green made a recommendation to terminate the applicant’s employment (see para [112]).

[187] Mr Sommer stated that he had considered a number of factors before making his decision, including recent training on the bullying and harassment policy, the inconsistency of the applicant’s statements, his understanding that the applicant was the aggressor, the corroboration of allegations against her and lack of corroboration of the claim that the applicant had been punched in the throat by Mr Nichol. In determining whether disciplinary action short of dismissal was appropriate, he considered the fact that the investigation had found strongly in favour of Mr Nichol’s version of events, the serious nature of a physical assault at work and the fact that the applicant’s conduct was contrary to the Asciano Code of Conduct.

[188] Mr Sommer said that he also had a discussion with Mr Philip Tonks (Divisional Director - Patrick Ports & Stevedoring), who agreed that termination of employment was appropriate. He advised Ms Green accordingly.

[189] In cross examination, Mr Sommer agreed that he was the ultimate decision maker in relation to the applicant’s termination. He had received procedural updates throughout the investigative process, but these did not really go to the substance of the investigation. He had not reviewed the interview notes and the other materials. He had relied on Ms Green and Mr Wickham to make an assessment of the evidence to make recommendations. Ultimately, he had relied on the email of Ms Green on 10 January 2014 (see para [112]). Mr Sommer clarified that the factors he had considered in relation to his decision were based on the report he had received from Ms Green.

[190] Mr Sommer conceded that if Mr Wickham and Ms Green had subsequently accepted that the material on which they had based their respective assessments did not support their conclusions, he would have been misled. Mr Sommer had not seen the allegations made by Mr Nichol. He had taken the phrase ‘Throughout the investigation the allegations that have been put forward by Paul Nichol have all been validated by numerous investigations’ to mean that the allegations had been corroborated by a number of people.

[191] In response to questions from me, Mr Sommer said that on the facts before him, he had considered disciplinary action short of termination may have been appropriate, but the physical and aggressive nature of the conduct alluded to in the email, had meant that it was at the serious end of the scale. There was no provision in the respondent’s disciplinary policy to accept a submission from an employee directly into account or to have an external independent investigator.

SUBMISSIONS

For the applicant

[192] In written submissions, Mr Howell set out the facts that should be accepted by the Commission as follows. The applicant had been working night shift on 27 November 2013 in her capacity as a Senior Tally Clerk and had asked Mr Gorlicki to bring his forklift into the warehouse. Someone had said over the two-way radio, ‘Why don’t you shut the fuck up, Suzie’. The applicant did not respond. The applicant mistakenly raised this with Mr Gorlicki when he returned to the shed and he told her that it had been Mr Nichol who had made the comment. Subsequently, there was an exchange between the applicant and Mr Nichol during a break, during which Mr Nichol assaulted the applicant. The applicant did not assault Mr Nichol. The applicant decided not to speak to Mr Nichol about this over the next shift, as she thought it had blown over. At 9:30am, after that shift, the applicant was advised she was to be stood down and would be required to attend an interview that night. After that meeting, the applicant was told that she could return to work. However, this decision was reversed the following morning. She attended a further interview and provided Patrick with additional information. At another meeting on 16 December 2013, the applicant was provided with a letter setting out the allegations that she had assaulted Mr Nichol and that this constituted serious misconduct. She provided a written response at a meeting on 19 December 2013 in which she denied these allegations. The applicant’s stand down continued and on 14 January 2014, she was dismissed.

[193] Mr Howell set out the definition of an unfair dismissal under s 385 of the Act and put that that the only issue to be determined by the Commission was whether the dismissal was ‘harsh, unjust or unreasonable’, having regard to the criteria set out in s 387 of the Act.

[194] Mr Howell said that in determining whether there was a valid reason for dismissal (s 387(a)), the context in which the behaviour occurred should be considered in a common-sense fashion; See: Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (‘Selvachandran’); IGA Distribution (Vic) Pty Ltd v Cong Nguyen (2011) 212 IR 141; Qantas Airways Ltd v Cornwall (1998) 83 IR 102; and Rail Corp New South Wales v Vrettos (2008) 176 IR 129. Where it was said that the valid reason was misconduct, the Commission must determine whether the misconduct occurred, rather than whether the employer believed, on reasonable grounds, that it had occurred; See: King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 (‘King v Freshmore’); Edwards v Justice Giudice (1999) 94 FCR 561 (‘Edwards v Giudice’); and B, C, and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191. The onus of proving this falls on the employer; See: Culpeper v Intercontinental Ship Management Pty Ltd [2004] AIRC 261 (‘Culpeper’) based on the standard of proof set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (‘Briginshaw’).

[195] Mr Howell explained that the valid reason(s) set out by Patrick as the basis for the dismissal of the applicant were that she had communicated inappropriately over the two-way radio and that she had physically assaulted Mr Nichol, which contravened the respondent’s Bullying and Harassment Policy. The applicant had consistently denied both allegations and there was no valid reason for her dismissal.

[196] Mr Howell referred to the notification of the reason for the applicant’s dismissal (s 387(b)) and the opportunity given to her to respond (s 387(c)). This required the applicant to understand what was alleged against her and that she be given a reasonable and genuine opportunity to defend herself; See: Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 (‘Crozier v Palazzo’) and Sutcliffe v General Motors-Holden’s Automotive Ltd [1998] FCA 88. Here, the applicant had been notified of the reasons for her dismissal in a letter on 16 December 2013 and had provided a response on 19 December 2013. She was subsequently dismissed when she was handed a letter on 13 January 2014. While the applicant was notified of the allegations and given an opportunity to respond, she was not given a genuine opportunity to be heard as to whether a lesser disciplinary sanction would be appropriate.

[197] Mr Howell noted that the applicant had been offered the opportunity to have a support person present at all meetings with Patrick (s 387(d)) and there were no suggestions that the applicant had been dismissed for poor performance (s 387(e)). Further, Patrick’s enterprise was large and it had extensive access to internal human resources personnel and to internal and external legal advice (ss 387(f), (g)).

[198] Mr Howell listed a number of other matters which were relevant as to whether the applicant’s dismissal had been ‘unfair, unjust or unreasonable’, including:

[199] Mr Howell emphasised that an employee who had been unfairly dismissed was entitled to be reinstated, absent a finding that it would inappropriate to do so (s 390; Regional Express Holdings Pty Ltd v Richards (2010) 206 IR 17). The applicant sought reinstatement to her former position, continuity of service and back pay.

[200] In oral submissions, Mr Howell submitted that the respondent had not discharged the necessary onus of proof to the Briginshaw standard, in the context of serious allegations of assault. He noted that the letter of dismissal issued 13 January 2014 (see para [3]) did not particularise the conduct that led to dismissal and referred to allegations set out in the show cause letter dated 16 December 2013 (see para [4]). If the applicant had engaged in the conduct alleged, then it would have been proper for her to have been dismissed. However, the ‘fundamentally flawed’ nature of the respondent’s investigation which led to the applicant’s dismissal, meant that its findings in relation to her use of the two-way radio and an aggressive assault by the applicant, could not be sustained.

[201] Mr Howell outlined the process of investigation. It was begun after a complaint by Mr Nichol on 28 November 2013 in relation to conduct in the late evening of 26 November or early morning of 27 November. Upon receiving this complaint, Mr Wickham interviewed the applicant and six other witnesses. However, the allegations of assault and harassment by Mr Nichol raised by the applicant in her initial interview, were never investigated. Nor had her assertion that the complaint had been made due to her own complaint about rostering being unfair.

[202] Mr Howell cast doubt on the usefulness of the evidence of Mr McIntyre. He noted that the applicant had been told at the end of 28 November 2013 that she could return to work, but this was reversed after the interview of Mr McIntyre, who had spent one shift on 29 November 2013 working with Mr Nichol. This was the first time that Mr Nichol’s allegation that the applicant had touched his throat was corroborated by anyone. In any event, Mr Wickham had accepted that Mr McIntyre’s evidence did not corroborate Mr Nichol’s version of events.

[203] Mr Howell referred to what had been termed the ‘second phase’ of the investigation by Mr Wickham, during which Ms Green became more heavily involved in a further series of interviews. Ms Green prepared the spreadsheet which informed the allegations put in the show-cause letter and the email to Mr Sommer on 10 January 2014.

[204] Mr Howell submitted that Mr Nichol’s evidence about the two-way radio incident should not be accepted. His story had changed throughout his interviews with the respondent, while the applicant’s claim that she had not engaged in abusive or insulting behaviour over the two-ways radio had been made consistently throughout. Four other witnesses contradicted Mr Nichol entirely and three of those supported the applicant’s claim that Mr Nichol had said, ‘Shut the fuck up, Suzie’. Mr Gorlicki had expressly disavowed that the applicant had spoken to him abusively, aggressively or inappropriately or that she shouted over the two-way radio. While Mr Ferguson had been identified by Ms Green as supporting the allegations of Mr Nichol in this regard, he had merely said that the applicant had given Mr Gorlicki a ‘spray’. He had later confirmed that she was not shouting. Ms Green had subsequently accepted that Mr Ferguson had not corroborated Mr Nichol’s version of events and that he had actually corroborated the applicant’s version of events.

[205] While Mr Howell accepted that the evidence of Mr Gorlicki and Mr Mackerras had changed between the time they gave interviews to Patrick and giving evidence in the Commission, this was credibly explained by the ‘wharfie’s rule’ of not dobbing on your mates. Accordingly, Patrick had no basis to conclude that Mr Nichol’s claim as to the applicant’s use of the two-way radio was substantiated and the Commission should prefer the version of events offered by the applicant. It could not be said to constitute a valid reason for dismissal.

[206] Mr Howell acknowledged that there was confusion as to the time that the confrontation in the meal room took place, but this was immaterial. What was relevant was what the applicant had done when entering the room, how she had approached Mr Nichol, whether she had grabbed him around the throat and whether Mr Nichol had punched her. The applicant’s account of this incident in her response to the show-cause letter, was entirely consistent with the evidence she had given to the Commission. Mr Nichol’s account that the applicant had ‘stormed in’ yelling at him and had then grabbed him by the throat, was simply not believable in light of the lack of corroboration and the small size of the room. Mr O’Connell had been identified as having corroborated Mr Nichol’s version of events, but he had not been called to give evidence. The Commission should draw a Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’) inference. Ms Green had subsequently accepted that the notes of his interviews did not appear to corroborate Mr Nichol’s version of events.

[207] Mr Howell described the respondent’s evidence that the applicant had touched or grabbed Mr Nichol’s throat as inconsistent. The applicant and Mr Nichol describe the applicant using one of her hands, Mr Cox and Mr McIntyre describe the use of two hands. In any event, the applicant’s account of this action being part of a ‘joke’ was consistent with the evidence of Mr Cox and Mr McIntyre. Moreover, Mr Nichol had increased his exaggeration of the applicant’s conduct as time went on.

[208] Mr Howell submitted that Mr Nichol’s assertion that he had not touched the applicant was not believable. She had approached him in a joking fashion, put her hand on his collar and he had overreacted and thrown a punch. The applicant’s evidence had been consistent with Mr Cox, although he did not see the punch ‘connect’. Mr McIntyre had described Mr Nichol’s action as a ‘flicking’ of his hands, but this corroborated the applicant’s evidence to the extent that there had been contact.

[209] Mr Howell put that the evidence was that prior to the incidents on 26-27 November 2013, the applicant and Mr Nichol had been friends, but he had recently been teasing her about the colour of her hair as opposed to the colour of her pubic hair. Mr Nichol had grossly exaggerated the applicant’s ‘violent tendencies’ and his own distress, but had not complained to the Shift Delegate or his Team Leader. He had not mentioned it to a senior Union official he had spoken to after the incident. His assertion that he was waiting for an apology was nonsense. Rather, he had been conscious that the applicant had been asking others if they had seen the incident. The manner in which the complaint had been made, in the company of Mr Carter, should have informed a cautious approach by the respondent, particularly in the context of the applicant having voiced complaints about Union delegates. While the Commission was not required to make findings on these points, they bore the hallmarks of a ‘fit-up’.

[210] Mr Howell submitted that there was no valid reason for the applicant’s dismissal and in the absence of a valid reason, a dismissal would invariably be unfair; See: Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243. While it should be recognised that investigations conducted by employers were not required to be of the forensic standard conducted by police officers or lawyers, the respondent had here failed to carry out a proper investigation; See: Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A QantasLink [2012] FWA 1360; Bluescope Steel Limited v Sirijovski [2014] FWCFB 2593; and Bostik Australia Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20; 41 IR 452. The respondent had not objectively examined the material before it; rather it had identified parts they felt supported Mr Nichol’s claims and ignored the rest. Additionally, they had not investigated the complaints raised by the applicant.

[211] Mr Howell described Ms Green’s recommendation to Mr Sommer as ‘grossly misleading’. Her assertion that the allegations were ‘confirmed by a number of other employees’ was not true and she had accepted this in cross-examination. Mr Sommer had understood from Ms Green’s email that an aggressive physical assault had been found proven and that the applicant’s story had changed repeatedly. The people conducting the investigation had fundamentally failed in their duty.

[212] Mr Howell confirmed that the applicant sought reinstatement, continuity of service and backpay, but noted that she had been engaged in other employment since 2 June 2014 on a comparable salary.

For the respondent

[213] In written submissions, Mr Burke said that the applicant had been dismissed for serious misconduct and, accordingly, she was not entitled to notice or payment in lieu of notice. The enterprise agreement under which she was covered set out that as a casual employee, she was not entitled to notice of the termination of her employment.

[214] Mr Burke set out the criteria that the Commission must consider, pursuant to s 387 of the Act, in determining whether a dismissal is ‘harsh, unjust or unreasonable’ within the meaning of s 385 of the Act and to the definitions of serious misconduct found in s 12 of the Act and at r 1.07 of the Fair Work Regulations 2009 (the ‘Regulations’). It was acknowledged that even where the reason for dismissal was serious misconduct, in order for it to be ‘valid’, it must be ‘sound, defensible or well founded’; See: Selvachandran.

[215] Mr Burke asserted that the respondent’s finding that the applicant had assaulted Mr Nichol on 27 November 2013 was a valid reason for dismissal (s 387(a)) and that the Commission could be satisfied that the applicant had engaged in serious misconduct within the meaning of the Act. Where an employee is dismissed for assault, it will not be viewed as ‘harsh, unjust or unreasonable’ in the absence of extenuating circumstances; AWU-FIME Amalgamated Union v Queensland Alumina ltd (1995) 62 IR 385 and Lambley v DP World Sydney Limited [2013] FCA 4.

[216] Mr Burke observed that the applicant had been notified of the reason for her dismissal in the correspondence given to her on 13 January 2014 (s 387(b)). She had been given the opportunity to respond to allegations raised in relation to her conduct on 28 November 2013, 4, 16 and 19 December 2013 and on 9 January 2014 (s 387(c)). The applicant had attended a meeting on 28 November 2013 with Mr Gough as her support person and with Mr Outram as her support person on 4 December 2013 (s 387(d)). Allegations of unsatisfactory performance were not relevant to the applicant’s dismissal (s 387(e)).

[217] Mr Burke acknowledged that the respondent was part of Asciano Ltd, which employs about 10,000 people across Australia (s 387(g)). Ms Green, a dedicated human resources management specialist, had participated in the investigation leading to the termination (s 387(g)). Mr Burke listed other relevant matters to a determination as to whether the applicant’s dismissal had been ‘harsh, unjust or unreasonable’ (s 387(h)), in particular, the significant factual dispute between the parties as to what had occurred over the two-way radio and the subsequent incident in the meal room. Where the applicant’s evidence conflicted with that of Mr Nichol, Mr Nichol’s should be preferred.

[218] In particular, Mr Burke submitted that Mr Nichol had said ‘Shut up, Suzie’ rather than ‘Shut the fuck up, Suzie’ over the two-way radio. This was supported by the witness evidence that suggested that this comment was made at 3:00am, rather than 11:00pm; the fact that Mr Gough and the applicant had signed notes setting out that this comment was correct and the corroboration of Mr Ferguson. Mr Gorlicki claimed that the phrase was, ‘Shut the fuck up Suzie and do your job’, but had initially claimed not to have seen or heard anything. Mr Mackerras did not remember it being said until preparing his evidence for this proceeding with the applicant’s Counsel. Mr Burke claimed that Mr Nichol had been consistent in his evidence as to what he had said over the radio, while the applicant had not been consistent as to what she had said. In addition, there was inconsistent evidence from the applicant’s witnesses as to how the applicant had approached Mr Gorlicki.

[219] Mr Burke submitted that the evidence demonstrated that at 5:00am, the applicant had entered the meal room, walked straight up to Mr Nichol and said, ‘If you tell me to shut up again, I will punch you in the head’. She placed one hand on his throat, with the other cocked and ready to strike him. Mr Nichol remained seated. Most witnesses had agreed that the incident had occurred at 5:00am and the Commission should give little weight to the evidence of Mr Gough and the applicant who both thought it occurred at other times. Mr Burke listed what were said to be inconsistencies in the applicant’s version of events over time and noted that at the point Mr Nichol had made his complaint, he was fatigued after having worked three twelve-hour shifts.

[220] Mr Burke noted that the applicant had said that she had been shocked at being punched by Mr Nichol. However, she had not reported the incident to anyone in management a Team Leader, or even Mr Gough. Even on the applicant’s own evidence, her conduct and comments (which she characterised as ‘banter’) constituted a breach of the respondent’s Bullying and Harassment Policy, in which she had been trained as to her conduct and reporting obligations. This was a further basis for a loss of trust and confidence in the applicant by the respondent.

[221] Mr Burke put that witnesses who said that they had changed their version of events due to their initial adherence to the wharfies’ ‘code of silence’ should have little weight attributed to their evidence. The applicant had also used this excuse for not making a complaint when she claimed she had been punched by Mr Nichol. Mr Burke compared and contrasted the evidence of the applicant’s witnesses with that of Mr Nichol. Where the evidence of Mr Mackerras and Mr Gorlicki conflicted with Mr Nichol, Mr Nichol’s evidence should be preferred as the others had changed their versions of events. Mr Gough was not capable of giving objective evidence due to his relationship with the applicant. Mr Cox’s evidence was not properly corroborative of the applicant’s account of the incident in the meal room.

[222] While Mr Burke maintained that the applicant’s dismissal was fair, he submitted that it would not be appropriate to reinstate the applicant as Patrick had lost trust and confidence in her; See: Perkins v Grace Worldwide (Aust) Pty Ltd (1992) 72 IR 186; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; and Nguyen v IGA Distribution (Vic) Pty ltd [2011] FWA 3354. He suggested that the applicant’s admission that she had ‘touched’ Mr Nichol under the chin constituted an admission of assault and therefore ‘serious misconduct’ and she had been the ‘aggressor’ in approaching Mr Nichol. Further, she had only recently been trained in the Bullying and Harassment Policy. The applicant’s misconduct meant that she should be entitled to no compensation. Alternatively, the Commission should discount any award of compensation, pursuant to s 392(3) of the Act.

[223] Mr Burke addressed the criteria for the Commission to consider when determining the amount of an award of compensation. He acknowledged that an order of the Commission was unlikely to effect the employer’s enterprise. However, the applicant had been employed casually for 14 months and a calculation of remuneration that would have been earned, but for the dismissal should take that into account.

[224] In oral submissions, Mr Burke put that the significant factual dispute between the parties as to what had occurred in the two incidents was another relevant matter to be considered in the Commission’s determination of whether the dismissal had been ‘harsh, unjust or unreasonable’ (s 387(h). They gave rise to credit issues in relation to the applicant and her witnesses, though he accepted that this was also relevant to determining whether there was a valid reason for dismissal (s 387(a)).

[225] Mr Burke affirmed that the respondent’s position was that where Mr Nichol’s evidence conflicted with that of the applicant in relation to the incidents in the meal room and over the two-way radio, the evidence of Mr Nichol should be preferred. This conclusion could be reached due to the number of inconsistencies in the applicant’s evidence and her supporting witnesses. It should be borne in mind that the initial complaint by Mr Nichol was not intended to be a full and formal statement of what had occurred. Any later differences were the result of elaboration on the initial bare complaint.

[226] In contrast, Mr Burke observed that the notes made by Ms Green of the applicant’s initial interview set out that the comment made to her over the two-way radio was ‘Shut up, Suzie’. This represented a contemporaneous recollection in circumstances where the applicant was accompanied by a support person.

[227] Mr Burke rejected any characterisation of Mr Nichol as an arrogant or uncooperative witness. Mr Howell had called him a liar on three occasions, but he had not wavered in his evidence. Nor was it accepted that Mr Nichol’s stated reason for not complaining earlier (that he was waiting for an apology from the applicant) was illogical. He had chosen to speak to Mr Carter due to his experience as a Union delegate. Mr Burke urged against any inference being drawn against the respondent due to its failure to call Mr O’Connell.

[228] Mr Burke insisted that the timing of the incident in the meal room was important. It had occurred in the course of the 5:00am meal break, rather than the earlier break. If that was accepted, this brought the credit of the applicant and Mr Gough into question, particularly as Mr Gough had been adamant that he was not present in the meal room at 5:00am. Mr Burke outlined a number of what he described as inconsistencies in the applicant’s account of what occurred in the meal room, where she was sitting and how she said Mr Nichol had punched her.

[229] Mr Burke described Mr McIntyre as an independent and particularly important witness. He had only been on his second shift on 26/27 November 2013 and did not have connections to the people he was working with, yet he had corroborated that an assault had been carried out on Mr Nichol. Even so, he conceded that he appeared to remember it differently to Mr Nichol.

[230] Mr Burke submitted that even on the applicant’s version - that she had walked toward Mr Nichol with her finger outstretched, saying, ‘I’ll smash you’ - there was a breach of the respondent’s Bullying and Harassment Policy in that it was threatening body language. She had been trained in this Policy approximately two months previous. If she had felt offended by Mr Nichol’s comment on the two-way radio, she should have raised it with her Manager.

[231] Mr Burke complained that the wharfies’ ‘code of silence’ represented an unfair hindrance to the ability of the respondent to conduct its investigations. This should be taken into account when determining whether the dismissal was ‘harsh, unjust or unreasonable’ (s 387(h)). It was another reason for the respondent losing trust and confidence in the applicant. It was also a reason telling against the applicant’s reinstatement.

[232] Mr Burke referred to the evidence of Mr Sommer and noted that he had given four reasons for terminating the applicant. Firstly, she had been involved in an assault. Secondly, she was the aggressor in the altercation. Thirdly, the previous two reasons had been independently corroborated. Finally, the conduct was a breach of the respondent’s policies.

[233] Mr Burke rejected any assertion by the applicant that there had been a ‘fit-up’ of the applicant. This would necessarily have involved Mr Nichol, Mr Carter, Mr Wickham, Ms Green, Mr Ryan and Mr Sommer. Such a claim could not be supported by the evidence.

[234] In reply, Mr Howell suggested that if the wharfies’ ‘code of silence’ was accepted as a reason for refusing reinstatement, it would follow that the respondent had lost trust and confidence in its entire workforce. In any event, the applicant was a individual person and not the Union. She had reported the assault by Mr Nichol in her first interview on 28 November 2013.

[235] Mr Howell described the inconsistencies alleged in the evidence of the applicant as immaterial. In reality, they were the kinds of inconsistencies you could expect if someone was interviewed numerous times over a period of time. The real material inconsistencies arose in the respondent’s case. The evidence suggested that Mr Nichol was lying or grossly exaggerating. There was no basis for finding that his allegations were made out.

[236] Mr Howell drew attention to one stanza of the respondent’s Bullying and Harassment Policy, which was as follows:

The applicant had done just this when she spoke to Mr Nichol in the meal room after she became aware that he had sworn at her over the two-way radio. Her reaction was not at all inappropriate and she had not been obliged to report the incident to management.

CONSIDERATION

Statutory provisions and relevant principles

[237] A person has been unfairly dismissed if the Commission is satisfied:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

[238] There is no doubt that the applicant was dismissed for serious misconduct as expressed in the respondent’s letter terminating her employment, effective 14 January 2014. In para [6] above, I observed that the respondent is not a small business and the applicant’s dismissal was not a case of genuine redundancy. This leaves for determination by the Commission only the question of whether the applicant’s dismissal was ‘harsh, unjust or unreasonable’. The matters the Commission is required to take into account when considering this question are set out at s 387 of the Act as follows:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[239] Guidance as to the meaning of the expression ‘harsh, unjust and unreasonable’ can be found in the oft-quoted passage of the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 (‘Byrne’), where their Honours, McHugh and Gummow JJ said at para [128]:

[240] It will be seen from this passage that the words ‘harsh’, ‘unreasonable’ and ‘unjust’ have their own discrete meaning in an industrial context involving the dismissal of an employee. Put another way, a particular dismissal does not have to meet all of the characterisations of the three words, but might only be found to meet one or two of them. As will be seen from s 387 above, the matters to be considered by the Commission include, firstly, whether there was a valid reason for the dismissal and secondly and more broadly, whether the employee was afforded procedural fairness in the lead up to, and including the dismissal itself. As Mr Howell strongly argued, this is a case which squarely raised these two considerations; that is both substantive and procedural unfairness.

Serious misconduct and the Act

[241] While not expressly couched as a dismissal for serious misconduct in the termination letter, it seems an unassailable conclusion that that is precisely how the respondent viewed the applicant’s conduct and how it reacted to its findings that the applicant had been found guilty of the allegations against her. It is clear that the applicant was summarily dismissed, without notice, and that the respondent regarded her conduct as serious misconduct when it said in the termination letter, ‘in light of the seriousness of the misconduct...’ In addition, in the show cause letter of 16 December 2013, it was said:

[242] That being the case, it is apposite to have regard to the meaning of ‘serious misconduct’ as prescribed by the Act’s Regulations. Reg1.07(1-3) sets out the definition as follows:

[243] It may be safely assumed that the respondent relies on the definition of ‘serious misconduct’ as including:

(a) assault of another employee (r 1.07(3)(a)(iii));

(b) her wilful or deliberate behaviour which was inconsistent with the respondent’s Bullying and Harassment Policy.

[244] Turning now to the broader principles dealing with serious misconduct, Reg 1.07 expressly states an employee may be guilty of serious misconduct where such conduct is wilful or deliberate such as to constitute a repudiation of her contract of employment, either expressly or implicitly (Reg 1.07(2)(a)). It is sometimes described as conduct which ‘strikes at the heart of the employment relationship’, such as to mean that a continuation of the relationship is untenable.

[245] This principle has been elucidated in a number of well known authorities. In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:

[246] Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 (referred to in the quote above) makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be ‘wilful’:

[247] In Concut Pty Ltd v Worrell (2000) 103 IR 160, his Honour, Kirby J, dealt with the ordinary relationship of the employer and employee at common law and said at para [51]:

[248] In Farquharson v Qantas Airways Limited - PR971685 [2006] AIRC 488, the Full Bench of the Australian Industrial Relations Commission (AIRC) referred, with approval, to the following analysis of Ross VP (as he then was) in Rose v Telstra Corporation Limited - 1444/98 N Print Q9292 [1998] AIRC 1592:

[249] In this case, there is a gaping evidentiary conflict as to what occurred in the meal room and what physical contact was had between the applicant and Mr Nichol. The applicant conceded that she had ‘touched’ Mr Nichol on the collar, but strongly denied grabbing him around the throat with one hand and threatening to punch him with the other. Mr Nichol insists he was physically assaulted.

[250] Given that the respondent essentially found that Mr Nichol’s version of events was substantiated, the onus in this case rests on the respondent to prove, to the Commission’s satisfaction, that the misconduct had, in fact, occurred. This evidentiary onus must be discharged on the civil onus of proof; namely, on the balance of probabilities set out in Briginshaw.

[251] While decided in an earlier statutory context, the comments of Moore J in Edwards v Giudice at paras [4] and [7] are apposite to this case:

[252] In King v Freshmore, a Full Bench of the AIRC said at paras [24], [26], [28] and [29]:

[253] Even accepting that a finding of serious misconduct was open to Patrick, it must not be confused with the statutory language. The statute still requires the Commission to find that there was, or was not, a valid reason for dismissal (s 387(a)). In Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, a Full Bench of Fair Work Australia (FWA, as the Commission then was) held at para [16]:

[254] The meaning of ‘valid reason’ in s 387(a) is drawn from the judgment of Northrop J in Selvachandran. This meaning has been applied by members of the Commission and its predecessors for many years:

See also: Culpeper and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201.

[255] As mentioned earlier, much was put by Mr Howell in respect to the denial of procedural fairness afforded to the applicant. It is trite to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court. In the High Court case of Byrne, supra above, their Honours McHugh and Gummow JJ said at para [130]:

[256] Three further authorities on the subject of procedural fairness in an unfair dismissal case is relevant to the parties in this matter. In Crozier v Palazzo, a Full Bench of the AIRC said at para [73]:

[257] In Wadey v Y.M.C.A. Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:

[258] Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v Bosmac Pty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

[259] In addition, it goes without saying that any issue or issues of procedural unfairness may not be of such significance as to outweigh the substantive reason/s for an employee’s dismissal, particularly in cases of serious misconduct relating to physical assault where the proven misconduct is of such gravity as to outweigh any other considerations such as age, length of service, contrition and issues of procedural unfairness generally. This was no doubt the approach adopted by Patrick; although it strongly rejected any suggestion that the applicant was denied procedural fairness.

Evidence of the incidents

The two-way radio incident

[260] One of the allegations against the applicant, found proven by the respondent, was that she had been abusive to other operators over the two-way radio. It would be impossible to divorce the incident in the meal room from the earlier incident that day involving the two-way radio conversation. In fact, this earlier incident was the genesis of the later confrontation between the applicant and Mr Nichol in the meal room.

[261] Unsurprisingly, the applicant and Mr Nichol disagree as to what was said over the two-way radio. Mr Nichol asserted, firstly, that the applicant was shouting at the operators in a very aggressive manner and, secondly, that she was shouting insults at the operators. He conceded that he had said, ‘Shut up, Suzie’. The applicant’s evidence was that Mr Nichol had said, ‘Shut the fuck up, Suzie’, although she originally believed it was Mr Gorlicki who had done so. Four other operators, including the applicant’s partner, Mr Gough, heard the conversation.

[262] Despite Ms Green’s corroboration spreadsheet, from which she concluded that both the above allegations of Mr Nichol were corroborated and therefore proven, only the first was said to be corroborated by Mr Ferguson (although his evidence actually corroborated the applicant’s version of what was said) and no-one corroborated the second allegation. Even more telling was that Ms Green and Mr Wickham seemingly ignored the applicant’s allegation that Mr Nichol had said to her, ‘Shut the fuck up, Suzie’.

[263] Of course, what emerged during the course of the evidence in this case was a very different picture to the already flimsy basis for Ms Green’s conclusion that ‘all of the allegations against the applicant had been corroborated by independent witnesses’. One of the operators, Mr Mackerras, now says that he did hear Mr Nichol say, ‘Shut the fuck up, Suzie’, having earlier told the respondent (Mr Wickham) that he did not hear or see anything. Mr Mackerras’ failure to disclose what he knew was explained by him that the Union’s unwritten ‘code of silence’ requires Union members not to ‘dog on’ (dob in) each other. Mr Gorlicki also said that he had heard Mr Nichol say ‘Shut the fuck up, Suzie’, but he also did not tell Mr Wickham this at either his first (28 November 2013) or second interview (9 December 2013). He explained that at the time everyone was still friends, no one had lost their job and he certainly did not think the matter would end up in the Commission. He did not want to get anyone into trouble. However, now things were very different.

[264] Mr Nichol gave evidence that he had told the applicant to ‘Shut up’ over the two-way radio because, as an important means of communication, particularly where safety was involved, he was concerned that the two-way was not being used appropriately. Strangely, Mr Nichol neither reported nor described what the critical safety issue was which had caused him to tell her to shut up. I am satisfied that Mr Nichol’s evidence is not to be believed. His evidence was self-serving and uncorroborated. He sought to minimise his involvement in the incident in order to paint the applicant as the villain and he the victim.

[265] I am satisfied on the balance of probabilities that the applicant’s version of events as to the two-way radio incident is generally to be preferred over the evidence of Mr Nichol.

The meal room incident

[266] There was some confusion as to what time the incident occurred in the meal room. This arose from the characterisation of what shift the crib break was taken. In my view, this confusion neither calls into question the applicant’s credit, nor is it necessarily relevant to the essential question as to what occurred during the incident. I agree with Mr Howell in this respect.

[267] I consider what is particularly relevant is the size of the meal room and the number of employees who were in the room at the time and one of whom, Mr O’Connell, who Ms Green found had corroborated Mr Nichol’s allegation that the applicant had ‘stormed into’ the meal room shouting. In fact, Mr O’Connell did not support this claim at all (as Ms Green later acknowledged). Mr O’Connell was not called by the respondent to give evidence in this case. Given what has now been revealed, it is entirely open to find a Jones v Dunkel inference adverse to the respondent. I find accordingly.

[268] Mr Nichol’s original complaint is set out at para [20] above. In essence, he alleged that he had been assaulted by the applicant - that when she stormed into the room, shouting, she approached him and said, ‘Tell me to shut up again and I’ll punch you in the head’. She then grabbed him by the throat. He elaborated on this by saying the applicant had one hand round his throat and the other cocked to strike him.

[269] The applicant alleged that she had approached the applicant in the meal room and said, ‘Don’t you ever talk to me like that again’. She had touched him on the collar and Mr Nichol ‘punched’ her in the neck.

[270] The meal room is not a large room - about 5 metres wide and 6-7 metres long. It has a lino floor, tables and chairs, and at the time, 11 employees were in the room. Except for Mr Nichol, none of the employees said they heard the applicant storm into the room, shouting. It is utterly implausible, that if the applicant had done so, not one of those present in the small room reported this claim. They could not have missed such a commotion. I am satisfied this allegation cannot be sustained.

Did the applicant grab Mr Nichol around the throat either with both hands or one?

[271] One witness, Mr McIntyre, described the contact between the two as ‘cuddling’, yet Mr Nichol firstly said that the applicant ‘grabbed me by the throat’. He later said that she ‘had one hand around my throat, the other hand cocked to strike’. While one might be forgiven for forgetting minor details, one could hardly forget someone’s raised hand threatening to strike.

[272] Mr Nichol’s version of events is not even corroborated by Mr McIntyre - the very person Ms Green exclusively relied on to justify corroboration; Mr Nichol denied touching the applicant at all. Mr McIntyre said ‘Paul pushed [her] away - like a flick of the hands’. He also said that there was no ‘storm up’ (by the applicant), contradicting Mr Nichol that she ‘stormed up’ to him.

[273] Even Ms Green conceded in evidence (PN2706) that Mr Nichol’s version of events has not remained consistent. Mr Nichol did not immediately report that he had been assaulted. Indeed, he waited till the next day. His explanation for the delay was that he was waiting for an apology from the applicant. Mr Nichol’s explanation is nonsense and implausible. I am minded to believe that Mr Nichol set about on a course to have the applicant disciplined. He needed corroborative evidence in the face of overwhelming evidence to the contrary and the ‘code of silence’. Enter Mr McIntyre (the volunteer) the day after all the other witnesses had been interviewed and no corroboration of Mr Nichol’s version events had been established.

[274] Mr Nichol complained to Mr Scott Carter - a person he well knew was less than sympathetic towards the applicant, because she had questioned Mr Carter’s election to the Consultative Committee. Both of them go and complain to Management. Do I smell a rat? Given the state of the evidence and my substantive findings, I can make no conclusive finding on these concerns (nor is it necessary to do so), save to say that there is a distinct ‘whiff’ about these matters.

[275] I say again, I found Mr Nichol’s evidence to be self-serving and improbable. He was a witness of little credit and where his evidence differs to that of the applicant, it is the applicant’s evidence which should be preferred. No other witness gave a version of events consistent with Mr Nichol’s. Mr Young, Mr Ferguson, Mr Cox and Mr O’Connell all thought the two of them were ‘playing’ or ‘clowning’ around. No other witnesses described a physical altercation between the applicant and Mr Nichol. Nor did any witnesses say that they heard the applicant describe Mr Gorlicki as an imbecile.

[276] On the other hand, I found the applicant to be a thoughtful and honest witness. She accepted propositions against her own interests and did not seek to embellish or exaggerate her evidence in order to mislead. She agreed that it was perhaps not the best response to confront Mr Nichol in the way she did. However, I believe she had been provoked by Mr Nichol and her reaction to being told in front of colleagues to ‘Shut the fuck up’ was unfortunate, but understandable.

[277] I am satisfied, on the balance of probabilities, that the evidence generally supports the applicant’s version of events in the meal room, as described in para [23] above. Mr Nichol’s evidence was self-serving and inconsistent. It is unreliable. There was no cogent corroborative evidence which supported his version of events. As I said earlier, he sought to colour or exaggerate his evidence to paint the applicant as the one who physically assaulted him and he was merely the innocent victim. At one point, he described the applicant as having ‘violent tendencies’. There was absolutely no foundation for such an allegation and did no more than confirm Mr Nichol as a witness of little credit. In my view, his conduct on that day should be reviewed in light of this decision and appropriate action taken.

[278] To the extent that Ms Green relied wholly on Mr Nichol’s version of events and erroneously concluded his version was corroborated by independent witnesses, her ultimate findings and recommendation of dismissal cannot be allowed to stand. To do so would be a gross miscarriage of justice.

Failures of the Investigation

[279] Obviously, Patrick’s investigation was not assisted by the wharfies’ ‘code of silence’. Indeed, it was positively hampered by it. It must be noted that whatever be the reality of the existence of the ‘code or silence’ or the Union’s unwritten acceptance of such a code within the ranks of wharfies, it is inconsistent with an employee’s obligation to be open, frank and honest with one’s employer when asked about serious issues in the workplace: See: Telstra v Streeter [2008] AIRCFB 15 at paras [14], [15] and [20]; and Thompson v John Holland [2012] FWA 10363 at [151]. If this ‘code of silence’ results in an inconclusive - or worse - an erroneous outcome from the employer’s investigation, then the Union can hardly complain, with any sincerity, that the investigatory process was flawed.

[280] That being said, the respondent’s investigation was flawed for other more fundamental reasons. There was no suggestion that the applicant had deliberately or wilfully failed to cooperate with the investigation. However, two very serious side-issues were disclosed in the evidence on this point. Firstly, after the 28 November 2013 meeting, Mr Wickham told the applicant to come back to work because no one could confirm Mr Nichol’s version of events. Strangely and inexplicably, the next day, a new witness (Mr McIntyre) comes forward voluntarily. The applicant is then suspended, but Mr Nichol is not, despite Mr Wickham having been told by the applicant that it was Mr Nichol who had provoked her.

[281] What should have set the alarm bells ringing is that on 28 November 2013, six people were interviewed by Mr Wickham (Mr Mackerras, Mr Young, Mr Gorlicki, Mr J Roach, Mr Ferguson and Mr McConnell). None of them corroborated Mr Nichol’s version of events. The very next day, a new witness, Mr McIntyre, volunteered new information, which allegedly corroborated Mr Nichol’s account. All of them had been in the same small meal room, yet Mr McIntyre’s version of events is the only one which was accepted. This seems very odd indeed.

[282] In the ordinary course of an investigation concerning conflicting allegations of assault and provocation, involving two employees, the employer would suspend both employees until the investigation revealed more conclusive findings. It is to be regretted that this did not occur in this case.

[283] Secondly, notwithstanding the so-called wharfies’ ‘code of silence’ and the view of a number of witnesses that disagreements or confrontations between Union members should be dealt with internally within the Union, Mr Nichol took Mr Carter, the Union Delegate, to the boss to complain about the applicant’s conduct. There was evidence in the case that the applicant had questioned Mr Carter’s earlier election to the Consultative Committee. Was she viewed by Mr Carter as a threat? Hence, his apparent willingness to assist Mr Nichol in having her adversely dealt with by management.

[284] As I said earlier, there were serious and fundamental flaws in the conclusions and recommendations Ms Green made to Mr Sommer. Notwithstanding the impediments in the investigation by the wharfies ‘code of silence’ (which I observe was not even mentioned by the investigators), Mr Howell, methodically, comprehensively and successfully demolished Ms Green’s statement evidence and findings that Mr Nichol’s ‘allegations have all been validated by numerous individuals’. This was no insignificant or passing finding; it lay as the cornerstone - the foundation - upon which Ms Green made the recommendation to Mr Sommer that the applicant be dismissed.

[285] In my judgement, Ms Green’s failures would constitute a sufficient basis for a finding that the applicant’s dismissal was unfair. I think it apposite to quote from some of Ms Green’s cross-examination:

[286] Mr Sommer’s cross-examination was also candid and illuminating, as the following few examples serve to demonstrate:

[287] In cross examination, Ms Green appeared uncomfortable and nervous, particularly as Mr Howell ‘warmed up’. However, I am satisfied that Ms Green was not an untruthful witness. She gave mostly one word answers which, embarassingly, effectively scuttled her own investigation and findings. Mr Burke asked only a few questions in re-examination, perhaps demonstrating that Ms Green’s evidence had been manifestly unhelpful to the respondent’s case. Nevertheless, I thank them both and Mr Sommer for not labouring to defend the indefensible.

[288] Ms Green had never conducted a disciplinary investigation into allegations of physical assault at the workplace. Her inexperience and lack of forensic skills as to the assessment of witness evidence, was a major contributory factor to the weaknesses exposed in the respondent’s evidentiary case. This should not be seen as a criticism, per se of Ms Green, but rather it demonstrates a failure of senior management to recognise the seriousness of the issues and their causes and a failure to independently assess the investigator’s findings and recommendations. Ms Green should not be blamed for these failures.

[289] Similarly, Mr Wickham’s role in the investigation cannot pass without criticism. In an extraordinary admission, Mr Wickham was told by Mr Cox that he had observed Mr Nichol ‘punch’ the applicant (as she had also told Mr Wickham), but he chose not to investigate this claim. This was grossly unfair to the applicant and meant his role in the investigation was seriously compromised. Nevertheless, Mr Wickham gave embarrassingly frank admissions, as these abstracts from transcript disclose:

[290] There were other aspects of the investigation which give rise to serious concerns. Mr Sommer was the person who ultimately made the decision to dismiss the applicant on the recommendation of Ms Green. The only information Mr Sommer relied upon was Ms Green’s email of 10 January 2014. Ms Green’s evidence was she had no conversations with Mr Sommer during the investigation or before he made his decision. Ms Green’s evidence was that she now accepts that she did not tell Mr Sommer that any inconsistencies in the applicant’s version of events were ‘marginal at best’.

[291] Ms Green further conceded that some of what she described as inconsistencies in the applicant’s version of events, were in fact the applicant providing further detail of her response. She agreed that none of these inconsistencies warranted the applicant’s dismissal and her recommendation to Mr Sommer was misleading. In Ms Green’s statement (para 49(a)), she claimed that applicant had admitted assaulting Mr Nichol. Ms Green now acknowledges that this was incorrect.

[292] Amazingly, Ms Green chose to only investigate Mr Nichol’s allegations and not any of the claims raised by the applicant in her first interview. These were:

(a) Mr Nichol had punched her;

(b) Mr Nichol’s history harassing her; and

(c) her complaints over the roster.

[293] Incredibly, Mr Wickham’s own notes of the applicant’s first interview record that Mr Nichol had a history of harassing people (see para [25]). Either Ms Green ignored this or was not told of it, as she should have been. In any event, Ms Green’s approach to the investigation was biased, incomplete and totally one sided.

[294] As to all the allegations against the applicant, it is plainly obvious that the respondent has not discharged the onus it bears in proving the allegations. I turn now to the specific criteria the Commission is required to take into account under s 387 of the Act.

Was there a valid reason for the applicant’s dismissal (s 387(a))?

[295] Unsurprisingly, the respondent’s evidentiary case in this proceeding was so hopelessly compromised that there can be only one inevitable answer to the question of whether there was a valid reason for the applicant’s dismissal. That answer must be in the negative. I venture to say that Patrick and Mr Burke will not be the least surprised at such an outcome, given it was the respondent’s witnesses whose frank and embarassing admissions brought its case unceremoniously undone.

Was the applicant notified of the reason for her dismissal (s 387(b))?

[296] The applicant was notified of the reasons for her dismissal. However, as these reasons have not been made out, this consideration is of neutral relevance in this case.

Was the applicant afforded an opportunity to respond to the reasons for her dismissal (s 387(c))?

[297] The applicant was provided with an opportunity to respond to the allegations. There were at least five meetings with management and she also responded in writing to the allegations. However, as previously mentioned, the respondent chose to ignore her claims against Mr Nichol and did not investigate them. Had it done so, there may well have been a different outcome, other than dismissal.

[298] In addition, I note that the applicant was given no opportunity to respond to the actual decision maker, Mr Sommer. Given Mr Sommer relied wholly on what Ms Green told him in the 10 January email, the applicant was denied an opportunity to correct inaccuracies in the email and inform Mr Sommer of her explanations and her own claims against Mr Nichol.

Was there any unreasonable refusal by the respondent to allow the applicant to have a support person (s 387(d))?

[299] The applicant was not denied the opportunity to have a support person present during her interviews. She attended meetings with either her Union official and or/ her partner and another person. This is a neutral consideration in this case.

Was the applicant warned about unsatisfactory performance (s 387(e))?

[300] The applicant was dismissed for serious misconduct. Accordingly the question of whether warnings were given for unsatisfactory performance do not arise in this case.

Was the size of the employer’s enterprise likely to impact on the procedures followed in effecting the dismissal (s 387(f))?

[301] The respondent is a large, well-resourced business, with a long history of dealing with numerous and contentious issues in the workplace. It failed miserably on this occasion to take the necessary steps to ensure the applicant was treated fairly and it failed to ensure that the allegations against her were properly and thoroughly investigated. Had it done so, I am certain a different outcome would have been the result.

Was the absence of dedicated human resource management specialists or expertise in the enterprise likely to impact on the procedures followed in effecting the dismissal (s 387(g))?

[302] The respondent has access to its own dedicated internal human resource specialists, and no doubt also to expert legal opinion. I note that Mr Wickham had only been employed at Newcastle for eight weeks at the time of the incident. As mentioned earlier, Patrick ill-advisedly entrusted Ms Green to conduct a serious investigation which was not within her experience or expertise to properly conduct. The result became glaringly obvious during the course of the evidence in this case. Given Ms Green’s lack of expertise, it behoved senior management, at the very least, to seek a second or independent opinion on the evidence the respondent had available to it. That this was not done, reflects poorly on the respondent’s senior management. I go as far to say, that had the respondent been given proper legal advice (or it had and rejected it) then this case would not have ended up in arbitral proceedings.

Other relevant matters (s 387(h))

[303] The other matters I consider relevant have been canvassed earlier in this decision. However, I would add for completeness that:

(a) there was no evidence that the applicant had anything other than an exemplary employment history with the respondent;

(b) there was no evidence of any similar behaviour to that which was alleged incorrectly against her either in the workplace or outside it;

(c) the applicant appears to have a large number of fellow workers who would welcome her back to the workplace. 19 employees signed a petition to this effect (see para [49]); and

(d) the applicant is the sole carer for her young daughter.

[304] For all the aforementioned reasons, I find that the applicant’s dismissal on 14 January 2014 was ‘harsh, unjust and unreasonable’ both substantively and procedurally within the meaning of s 387 of the Act. I turn now to remedy.

Appropriate Remedy

[305] The remedies for an unfair dismissal are set out at s 390 of the Act as follows:

[306] It is plain from a reading of s 390(3) above that the legislature intended to give primacy to reinstatement in circumstances where an employee has been unfairly dismissed and the Commission is required to exercise a discretion as to any orders in respect to remedy. Lest there be any doubt as to this proposition, one of the objects of Part 3-2 of Ch 3, dealing with unfair dismissal, states:

[307] I also refer to what was said by the Full Bench of the Commission in Colson v Barwon Health [2014] FWCFB 1949, where at para [29], it was said:

[308] In my opinion, there is no sound or cogent reason why the applicant should not be reinstated. Given the primacy placed on reinstatement of an unfairly dismissed employee, it is appropriate that this occur. The evidence of inappropriateness of reinstatement, such as it was, from Ms Green and Mr Sommer (loss of trust and confidence and the seriousness of the allegations) ‘rings rather hollow’ considering my conclusions as to the manifest injustice suffered by the applicant as a consequence of her dismissal.

[309] In Nguen v Vietnamese Community in Australia [2014] FWCFB 7198, the Full Bench of the Commission recently discussed the meaning of ‘inappropriate’ in the context of s 390 and helpfully summarised the relevant case law as to a loss of trust and confidence telling against an unfairly dismissed employee’s reinstatement. At paras [14]-[28], the Full Bench said:

[310] The applicant obtained alternative employment around 2 June 2014 and has been paid a comparable rate of pay to that which she was earning before her dismissal. Accordingly, I propose to make consequential orders for the payment by the respondent to the applicant for all lost remuneration between 14 January 2014 and her reinstatement, less any income earnt by the applicant during this period.

[311] A further order will be made that the applicant’s continuity of service shall not be taken to have been broken by her dismissal.

[312] The applicant’s reinstatement to her former position as a Senior Tally Clerk shall take effect within 14 days of today or such other date as may be agreed by the parties.

DEPUTY PRESIDENT

Appearances:

Mr A Howell of Counsel with Mr A Jacka of the Maritime Union of Australia for the applicant.

Mr S Burke, Solicitor with Ms T Green and Ms C Ross for the respondent.

Hearing details:

2014:

Newcastle.

27, 28, 29 May

13, 14 August

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