DECISION

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

Mr Jason Schmidt
v
BHP Coal Pty Ltd
(U2014/10098)

Application for relief from unfair dismissal - arbitration.

Introduction

[1] Jason Schmidt worked for BHP Coal Pty Ltd (BHP Coal) at their Saraji mine (the Mine) for just over 13 years. The Mine is situated approximately 50 km south-east of the Bowen basin in Queensland. Mr Schmidt was employed as an operator at the Mine. From about 2011 onwards he worked in the Pumps and Earthworks Department. The Pump and Earthworks Department at the Mine is responsible for dewatering the mining pits and general earthworks that are not related to coal mining activities. In this role Mr Schmidt operated graders, scrapers and dozers.

[2] Mr Schmidt’s employment was terminated in June 2014 following an incident on 8 May 2014. He seeks reinstatement on the grounds he was unfairly dismissed.

[3] Mr Schmidt was represented by Mr Anderson from Construction, Forestry, Mining and Energy Union and BHP Coal were represented by Mr Rauf of Counsel instructed by Ms Mayr from Ashurst.

Factual Background

[4] Mr Schmidt lives in Dysart in central Queensland has worked in various departments at the Mine.

[5] He worked in his current role from about 2011 onwards until his termination. Prior to 2008 he was a member of the Mine’s rescue team at Saraji but resigned for personal circumstances, in particular, carer responsibilities.

[6] Prior to the incident in May 2014, Mr Schmidt had been on a Step 3 Final Warning which included advice that dismissal may result from any further act of misconduct. BHP Coal submits that in considering its decision about the appropriate action for the incident of 8 May 2014 it had regard to previous formal records of disciplinary action.

Earlier Warnings

[7] Mr Schmidt was subject to 2 warnings in December 2013. These were Step 2 and 3 Warnings concerning Mr Schmidt’s conduct. The Step 2 Warning was on 17 December 2013 which related to not advising the BHP Coal that he would not be returning to work that day after he had approved leave. Mr Schmidt says that BHP Coal should have known he would not be returning given that he had gone home after an incident that required him to change his clothing. BHP Coal says that it expected him back at work.

[8] The Step 3 Warning arose from his late arrival for work 2 days later, on 19 December. Mr Schmidt says that he was counselled about the lateness but at no time was he warned about his failure to notify that he had arrived late. BHP Coal says that it was about both the lateness and the lack of notification.

[9] Mr Schmidt disputed these incidents at the time but took no other action to dispute them formally.

[10] Additionally, Mr Schmidt had been counselled prior to the warning but BHP Coal indicated that it had not taken these matters into account in dismissing him.

The fuel tank incident - 8 May 2014

[11] On 8 May Mr Schmidt was assigned the task of using the Track Dozer 72 to move a skid fuel tank 1. He completed the task at approximately 8:30am.

[12] About half an hour later at 9.00am 2 other employees working in the same crew, Mr Keune and Mr Meaney, observed leaking fuel. Mr Keune came and spoke to Mr Schmidt and raised with him that they had noticed diesel leaking from the tank. He enquired from Mr Schmidt as to whether he had bumped it.

[13] Mr Schmidt indicated he didn’t think he had. The 2 other operators requested that he have a look at it.

[14] As requested Mr Schmidt then looked at the damage and decided it could have occurred while he was towing the tank. 2

[15] Mr Schmidt then returned to his dozer and attempted to use the two-way to contact his Supervisor, Mr Steve Marshall about the damage. He was unable to contact the Supervisor either by two-way or using his mobile phone while at the bottom of the pit.

[16] At 9:29 am Mr Schmidt, who had by this time left the pit, texted using a mobile phone for a number stored in his phone as ‘Car 21’. Mr Schmidt stated that he named this number ‘Car 21’ because that was the call-sign on site for the supervisor for pump and earthworks.

[17] The message said (verbatim):

“Forgot to tell got pyso appointment at 11:20 I’ll keep working if you want there a small fuel leak around gauge on pod puppy’s will tell you about it.”

(pyso refers to physio and puppys is a misspelling of ‘pumpys’ which is the nickname for the pump crew)

[18] However the number stored by Mr Schmidt as ‘Car 21’ was an old mobile number which had not been used by Mr Marshall since March 2014.

[19] On that day, Mr Schmidt made several other attempts to get in touch with Mr Marshall and then the Superintendent, Mr Glenn Fox. Ultimately he did so, but at no time when Mr Schmidt contacted Mr Marshall or Mr Fox did he raise the fuel tank incident, although other work matters were discussed. It was not until later that day when the pump operators advised of the leak that Mr Marshall became aware of it.

[20] Later in the shift, at a meeting the Step-up Supervisor, Mr Dave Farley, requested a statement from Mr Schmidt concerning the fuel tank incident.

[21] Mr Schmidt explained that he had sent the text message. Mr Marshall indicated he had not received it.

[22] Further meetings were held with Mr Schmidt on 11, 14 and 15 May.

[23] On 23 May Mr Schmidt was issued with a show cause letter identifying the following:-

● Whilst operating Track Dozer 70 (TRD 70) you reversed into a Skid Fuel Tank causing damage to the fuel gauge;
● Failed to notify your Supervisor of the above incident within a reasonable time frame after the incident occurred; and
● You failed to secure and preserve scene of the investigation after the incident occurred.

[24] As a result of this investigation BHP Coal concluded that Mr Schmidt’s actions on 8 May constituted misconduct. Further that he acted in an unsafe manner and failed to notify his Supervisor of the damage within a reasonable time frame. They found specific breaches of various standards and values of BHP Coal. The letter noted that Mr Schmidt is currently subject to a Step 3 Final Warning. Further given the seriousness of the findings disciplinary action may include termination.

[25] Mr Schmidt was invited to provide a written response and did so. The response accepted it is likely that he caused the damage to the tank and explained that the content of the text message was not meant to avoid accountability but to confirm with his Supervisor that he would be informed of the issue later in the day by the pump crew. He explained the reason why he concluded it was unnecessary to secure the site. The letter also raised a willingness to undertake any further training or retraining that BHP Coal felt would assist.

[26] On 6 June BHP Coal terminated Mr Schmidt’s employment.

[27] It is Mr Schmidt’s case that the earlier warnings were wholly unjustified and not appropriate to rely on in terminating his employment. And further that the incident on 8 May of the alleged breach was unintentional; there was no serious risk to health and safety; BHP Coal’s investigation was inadequate and ineffective; and in the circumstances there was no obligation on him to report the incident or to preserve the site, as the pump operators were using the site.

[28] It is BHP Coal’s case that it is entitled to rely on formal records of disciplinary action, including previous warnings which include conduct by Mr Schmidt in not properly communicating with the supervisor. Further the failure to dispute these earlier findings cannot now be litigated in these proceedings. The option to challenge the decision was available to Mr Schmidt at the time but was not taken. As for the incident on 8 May BHP Coal concluded that Mr Schmidt had “acted in an unsafe manner and you failed to notify your supervisor of the damage within a reasonable timeframe”.

Mr Schmidt’s evidence and submissions

The Earlier Warnings - 17 and 19 December 2013

[29] The termination letter from the employer states as follows:-

“I have taken into account... your employment history noting that you are currently subject to a Step 3 - Final Written Warning.”

[30] Mr Schmidt submits that notwithstanding the fact that he ultimately did not pursue a dispute concerning his earlier warnings this should not be determinative of BHP Coal’s reliance on the warnings. Further such an approach does not absolve BHP Coal from ensuring that the reasons for any dismissal are sound, defensible or well founded. In support of this conclusion he submits:

● he disputed the 2 warnings and BHP Coal were aware that he did not accept them;
● in respect of the 1st warning, he advised the Supervisor that he would not be returning to work that day;
● the circumstances of that day that gave rise to his need to change his clothing;
● in final submissions Mr Anderson noted as follows:

“…in the applicant’s submission it was fundamentally clear, regardless of any direct discussion with the supervisor, that an employee in that situation should not be expected to return to work. It’s simply not a matter which should have been the subject of discipline, particularly not a step 2 warning”;

● it should not have been the subject of discipline particularly not a Step 2 Warning;
● as to the Step 3 Warning, his submissions differentiate lateness for work and the issue of notification of that lateness;
● he was not told it was an issue of notification of late arrival nor does the written notice speak of notification;
● he advised his Supervisor appropriately that he would be late to work on the day in question;
● further that verbal warnings require written notification and if BHP Coal felt there was a real issue it should have clearly advised him in accordance with those procedures.

The Incident of 8 May 2014

[31] Mr Schmidt submits that after towing the pump and assisting in setting it up and after approximately 30 minutes after moving the tank Mr Schmidt was informed by Mr Keune that the fuel tank had some minor damage and was likely seeping oil near the gauge 3. It is Mr Schmidt’s position that he was not advised by either employee to report the incident.

[32] He deposes he was unable to contact his Supervisor while in the pit, and he was running behind completing other tasks that morning. He then left the pit returned to the haul road and then sent a text message to Mr Marshall informing him of the fuel tank incident. He states:-

“I had to leave work at 11:20 that day to attend a physiotherapy appointment, I left the mine pit. However as I needed to let Steve know about the incident but I could not get hold of him, I felt that the next best way that I could notify him of this issue was to use my mobile phone to send a text message to his work mobile phone alerting him to the issue and informing him that the pump crew could provide him with more detail.”

[33] On the question of sending the text to “Car 21” Mr Schmidt deposed that he used the stored number for ‘Car 21’ because it was the call sign of the site supervisor for pump and earthworks. Mr Schmidt deposes:

“As Steve was a supervisor on shift of this department the message to ‘Car 21’ would have gone to him.”

[34] Mr Schmidt further deposes:-

“I felt that the message conveyed the issue at hand and gave Steve enough knowledge not to be too concerned with the issue and that he could gain further information by contacting me or further to speak to one of the pump crew later in the day.”

[35] He then commenced another task but ran into further difficulty which required him to contact Mr Marshall and others. He was again unsuccessful in this regard. Later in the morning he spoke with both Mr Marshall and Mr Fox about the other issues. He deposes he did not mention the fuel tank incident because of all the other issues that happened later.

[36] After his physiotherapy appointment he returned to work and resumed duties as normal, working at a tower in the same pit as the pontoon pump.

[37] In the meeting held that day, during discussion about the reporting of the incident Mr Schmidt submits he took out his phone and showed Mr Marshall the text message.

[38] Mr Schmidt deposes that Mr Marshall said words to the effect that the statement was a formality and that he was not in trouble.

[39] Some 3 days later a further review meeting was held, but at neither of those meetings was Mr Schmidt afforded a support person, although he submits he requested one.

[40] As to the breaches of the BHP Coal’s policy Mr Schmidt says as follows:

Failure to notify supervisor immediately after the incident

Mr Schmidt points to some complexity around breach of this policy. In particular to substantiate a breach, it must be found that Mr Schmidt actions are contrary to his obligations to notify the supervisor responsible or the persons involved that are responsible for the location. The complexities around the time of notification are:

● Mr Schmidt swears he nor anyone else is aware of the specific incidents that caused the damage to the fuel gauge; rather it was circumstantial and proximity evidence that the damage occurred while he was moving the fuel pump in the morning;
● at least one other employee, possibly more, were aware the pump was damaged but had not reported it;
● ‘immediately after the event’ must mean once an employee became aware that the ‘event’ occurred;
● however after having been made aware of the damage to the fuel tank Mr Schmidt deposes he immediately made several attempts to contact and notify his Supervisor;
● after failing to contact him via the two-way and via his mobile phone Mr Schmidt decided to drive out of the pit to continue on his next task; as soon he was out of the pit and in mobile reception range he sent a text message;
● he deposes he took numerous steps to notify of the ‘damage’ as soon as he could.

[41] As to the manner of notification Mr Schmidt deposes that if BHP Coal takes umbrage with the manner in which Mr Schmidt notified his Supervisor, this is a different concern which was never raised with Mr Schmidt during the investigation of disciplinary process prior to the termination of employment.

Failure to remain and preserve the scene

[42] Mr Schmidt did not remain and preserve the scene because:

● he did not believe the damage was significant to warrant an investigation;
● the time between when the damage occurred and at the time he was made aware was approximately half an hour;
● although Mr Schmidt deposes that other employees noticed damage none of them reported it or stopped using the fuel tank; and
● the obligation to preserve the scene did not arise because Mr Schmidt submits the damage to the fuel tank which is believed to have been caused by him did not constitute an event which would trigger an investigation. As such his actions in not preserving the scene are not necessary.

Breach of charter values

[43] The basis for breach of the values is the failure to report the incident in a timely manner. Mr Schmidt submits he reported the incident as soon as he could and therefore did not breach BHP Coal’s charter values.

Investigation of fuel tank incident

[44] Mr Schmidt says that there was no thorough investigation and re-enactment to ensure that BHP Coal was satisfied that the incident was caused by Mr Schmidt.

[45] Mr Schmidt’s submissions are that as an experienced operator the best evidence before the Commission is that he did not notice any collision between the dozer and the fuel tank. Further, submissions from BHP Coal suggesting Mr Schmidt had been dishonest were not put to Mr Schmidt during the disciplinary process and are entirely unsupportable.

[46] As to the safety risks concerning leaking fuel Mr Schmidt’s submission is as follows:

● the only clear evidence concerning the state of the leak at the relevant time is that of Mr Schmidt; and
● the cross-examination deals only with a hypothetical situation and that Mr Schmidt’s evidence is that he did not observe a flowing leak.

[47] Mr Schmidt additionally presses that an inference should be drawn against BHP Coal in relation to it’s failure to produce its employees Mr Meaney and Mr Keune for cross-examination.

[48] Mr Schmidt submitted:

● that the evidence before the Commission does not support BHP Coal’s proposition that the incident required immediate notification and preservation of the scene;
● that he reported the incident prior to the end of the shift which was the time such an incident needed to be reported;
● BHP Coal's failure to advise him of disconnection of the ‘Car 21’ phone is not a matter for which Mr Schmidt can be criticised; and
● the text message was sent to the relevant phone number and he had no reason to believe the number had been disconnected.

[49] On the issue of failure to secure and preserve Mr Schmidt submits:

“...any disruption of any scene by the applicant was made in the absence of knowing there was a scene or incident. Those who had any such obligation, and knew of the issue, did nothing to prevent any contamination of the scene. Those involved continued to work, including with the relevant equipment, because it was not a major incident requiring immediate notification and preservation of the scene.” 4

[50] Mr Schmidt’s evidence is that the fuel tank was used by the pump crew after the incident and that evidence is supported by Mr Fox. Any evidence to the contrary from Mr Meaney and Mr Keune cannot be relied on to draw a contrary conclusion as they were not called.

BHP Coal’s evidence and submissions

The Earlier Warnings

[51] It is BHP Coal’s case that it is entitled to rely on the records on the file of its employees.

[52] BHP Coal relied on 2 previous warnings. On 17 December 2014 Mr Schmidt was given a Step 2 Warning concerning a failure to notify his Supervisor that he would not be returning to work that day. A Step 3 Final Warning was issued 2 days later for his late attendance at work.

[53] In submissions BHP Coal points to the documentary evidence as to the discussions which occurred. These are on the record of the employee and BHP Coal submits it is entitled to rely on these formal records of disciplinary action. It submits that the previous warnings include conduct by Mr Schmidt in failing to communicate properly with his Supervisor.

[54] Although these earlier warnings are disputed by Mr Schmidt, no formal dispute was initiated by him. BHP Coal submits it is unsurprising that an employee would express unhappiness about a disciplinary outcome. However, BHP Coal submits, that does not mean the employee can re-litigate or challenge the record at a later date in the face of further disciplinary action for a subsequent breach.

[55] That is, this case should not be an opportunity to revisit prior disciplinary action that constitutes part of the employment record of Mr Schmidt. In this regard BHP Coal relies on the decision of Albert v Techni-Clean Australia where Deputy President Sams noted:

“… If warnings are to have a cathartic impact which hopefully improves the employee's performance or behaviour, then they must be seen to have a meaningful and demonstrable purpose. It seems to me that this is one of the reasons why the legislature choose to include the criteria for FWA to consider ‘harshness’ the requirement to take account of ‘whether the person had been warned about that unsatisfactory performance before dismissal.’ (s387(e)).

[56] DP Sams went on to note:

“In addition, I do not consider that such warnings must only relate to the same reason as to why an employee must be subsequently validly dismissed. Put another way continued breaches of company policies, does not mean each breach can be disaggregated from the employee's overall behaviour, if earlier warnings related to breaches of different policies. Put simply it may be that a valid reason for dismissal is the ongoing individual breaches of a number of the company’s policies.” 5

[57] While there was reference to a number of other previous performance issues, they were included to respond to evidence of Mr Schmidt asserting he had a good employment record. However they were not taken into consideration by BHP Coal in the ultimate termination of Mr Schmidt.

The Incident of 8 May 2014

[58] BHP Coal submits that the reason for Mr Schmidt’s termination is because he engaged in the following conduct:

1. While operating a dozer, he reversed into a fuel tank and damaged the fuel gauge (the collision).
2. Mr Schmidt failed to notify the Supervisor about the collision and the damage immediately after the incident occurred (the failure to notify).
3. Mr Schmidt failed to secure and preserve the scene after the collision occurred (the failure to secure and preserve).

1. The collision

[59] BHP Coal submits that concerns were raised with Mr Schmidt by other employees, Mr Keune and Mr Meaney, that there had been a collision and that Mr Schmidt had been requested by the other employees to let the supervisor know. BHP Coal submits it is not in dispute that Mr Schmidt had, while operating the track dozer, collided with the skid fuel tank.

[60] As to the consequences for safety of this collision BHP Coal submits:-

● in contrast to the accounts provided by Mr Schmidt; Mr Keune and Mr Meaney contends that fuel was flowing out;
● this is supported by a photograph which BHP Coal submits reveal a white stream running down which indicated the pathway of fuel was flowing in the vertical line from the gauge towards the ground;
● Mr Marshall's evidence was that there was a large flow in the dirt to mark where the diesel had been; and
● on the point of notification of the incident BHP Coal submits that the evidence of Mr Schmidt is inconsistent: if the incident did not give rise to any concern it was counter-intuitive of Mr Schmidt that he considered there was a need to notify his supervisor of the incident.

2. Failure to Notify

● Mr Schmidt, while accepting the incident may gave rise to a duty to notify, he did not act reasonably to ensure his Supervisor had been informed of the circumstances of the incident;
● the text was sent to the wrong mobile in circumstances where Mr Schmidt ought to have reasonably known the mobile number was no longer in use;
● Mr Schmidt was aware that Mr Marshall has an active work mobile telephone number and Mr Schmidt had used it on 5 occasions including the day before on 7 May 2014;
● Mr Schmidt was unable to explain why he did not utilise this most recent message or contact;
● BHP Coal submits that Mr Schmidt had no real intention to inform his Supervisor of the circumstances of the incident and was concerned about the outcome;
● the text that was sent made no mention of any collision or fuel leaking to the ground; and
● If Mr Schmidt had acted reasonably to ensure his Supervisor had been informed of the circumstances of the incident, Mr Schmidt will have availed of a number of opportunities to do so but did not.

3. Failure to Secure and Preserve

● Mr Schmidt failed to secure and preserve the scene until his Supervisor had been made aware of the incident;
● by failing to secure and preserve Mr Schmidt had prejudiced the conduct of any investigation and placed his Supervisor and BHP Coal in a position of exposure to breach their respective obligations under safety legislation;
● to the extent the scene had already been disturbed, the evidence of Mr Schmidt was that it was because he had pushed the pump;
● as to the assertion that the tank was used on the day, BHP Coal submits there is no positive evidence of the tank being used following the collision. At its highest the evidence indicates that Mr Marshall was unsure if the tank had continued to be used;
● after Mr Marshall was advised of the incident by the pump workers, he went and took photographs of the pod;
● Mr Fox had not attended the scene of the incident on the day;
● on the question of whether BHP Coal could have obtained evidence from Mr Keune or Mr Meaney, BHP Coal submits that Mr Schmidt accepted that he had been involved in the collision, that it had been raised by his colleagues, that there had been leaking fuel which collected on the ground; and if fuel collected on the ground it presented a matter of concern;
● the collision and the leaking fuel gave rise to a duty to notify;
● as a trained operator, Mr Schmidt had knowledge of safety procedures;
● despite a number of opportunities to communicate the circumstances of the incident, Mr Schmidt did not do so; and
● a text message to an incorrect mobile number which did not mention the collision, fuel leaking on the ground, or that concerns have been raised about the need to notify other employees was not adequate notification to his Supervisor.

[61] As a result, BHP Coal submits the decision to terminate Mr Schmidt's employment was for a valid reason.

[62] It was further submitted that:

● Mr Schmidt showed no contrition or willingness to acknowledge that his steps to notify his Supervisor could have been better undertaken or that his conduct was deficient having regard to applicable requirements with which he was familiar;
● it is Mr Schmidt’s continued position that he did all things necessary and nothing further could or should have been done; and
● such a position presents a basis of concern to Mr Schmidt's attitude and understanding of complying with applicable safety requirements.

Summary

[63] BHP Coal’s case is that Mr Schmidt apprehended that there was a need to notify in relation to the fuel tank incident; despite that apprehension he did not notify because an imprecise text message sent to a wrong number on any view could not be seen as fulfilling the obligation.

[64] Mr Schmidt’s subsequent conduct on the day in question in not raising the fuel tank incident when speaking with his supervisors, and flagging or confirming his attempted communication supports the view that Mr Schmidt did not go about fulfilling his obligations appropriately.

Issues as to termination

[65] BHP Coal terminated Mr Schmidt’s employment on 6 June 2014. It took into account Mr Schmidt’s response to its show cause letter, as well as the seriousness of the incident, the verbal and written responses during investigation and his employment history with BHP Coal in determining the appropriate disciplinary action. It concluded that the actions of Mr Schmidt were a significant departure from the expectations of an employee and, as he was already on a Step 3 Final Warning, BHP Coal determined it was appropriate to terminate his employment.

Consideration

Harsh unjust or unreasonable?

[66] An employee will be unfairly dismissed if the dismissal was harsh unjust or unreasonable. 6

[67] In Byrne v Australian Airlines Ltd 7 the High Court explained what is required in deciding whether a dismissal was harsh or unjust or unreasonable:-

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

[68] Section 387 of the Fair Work Act 2009 provides criteria for deciding whether a dismissal was harsh unjust and unreasonable. The Commission must take into account the following:

(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.

[69] All of these criteria must be taken into account and then a conclusion must be made whether the dismissal was harsh unjust or unreasonable.
(a) valid reason
[70] A valid reason is one that is “sound defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced”.  8

[71] BHP Coal submitted in addition a reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts.

[72] In this regard it submits that the decision concerning the appropriate disciplinary action for the incident of 8 May, BHP Coal had regard to previous formal records of disciplinary action.

[73] That is, that Mr Schmidt had received a Step 2 Written Warning dated 17 December 9 and a Step 3 Final Written Warning for late attendance at work on 19 December 2013.

[74] BHP Coal submits:

“In isolation, the Applicant’s conduct relating to the incident on 8 May 2014, would not have been sufficient to constitute a valid reason for his dismissal. However the Applicant’s prior performance, including the fact that he was subject to a Step 3 - Final Warning, left the Respondent no choice but to terminate his employment given the Applicant's refusal to take seriously the most basic of notification requirements. 10

[75] BHP Coal added that Mr Schmidt was aware before the fuel tank incident that further breaches could result in termination of employment.

[76] BHP Coal submits that there is therefore a valid reason for the dismissal.
The earlier incidents
[77] BHP Coal says it is entitled to rely on its formal records of disciplinary action and there is no opportunity to revisit prior formal disciplinary action which constitutes part of the employment record. Mr Schmidt submits that the earlier warnings were wholly unjustified and not appropriate to rely on. Further, that a Step 2 and a Step 3 Warning was not commensurate with the conduct.

[78] Mr Schmidt refers to King v Freshmore 11 and submits that the Commission must resolve any factual disputes on the evidence that is put before it.

[79] That case does provide relevant guidance on the question of evidence before the Commission and whether the conduct took place. It states:

When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 12

[80] It is clear that the Commission must determine on the basis of the evidence before it whether the alleged conduct relied on took place, and further to determine on an objective basis if the conduct forms the basis for a “sound, defensible or well founded” reason, rather than one that is, for example “capricious, fanciful, spiteful or prejudiced”. 13

[81] It is not the case that the Commission should merely accept formal records of disciplinary action because of some past breach that formed the basis of earlier warnings.

[82] When an employer relies on those earlier warnings as a basis for ultimate termination, it is incumbent upon the Commission to consider the prior conduct in the context of the present case and whether the conduct relied on as a valid dismissal took place on the basis of evidence before it.

[83] The Commission is not restricted to accepting the employer’s conclusion about the prior conduct, but it must be decided on the basis of the evidence in the proceedings before it whether the conduct leading to the dismissal, in its full context, gave rise to a valid reason to dismiss. In so doing, the Commission is not undertaking a review of the earlier disciplinary action, but examining whether the combination of the earlier conduct and sanction, and the present decision to dismiss, constitute a valid reason.

[84] In this case, BHP Coal’s own submission is that the incident triggering the dismissal, the fuel tank incident, would not, on its own, have been a sufficient reason to dismiss Mr Schmidt. The valid reason for dismissal is said by BHP Coal to be the fuel tank incident in the context of the 2 earlier warnings that placed Mr Schmidt on a Step 3 Final Warning.

[85] Mr Schmidt’s evidence is that he disputed the earlier sanctions, but did not formally challenge them. In his submission it does not matter that he did not undertake a formal challenge to the earlier warnings. What matters is whether those warnings can form the basis for the later dismissal.

[86] Whether or not an employee disputed the conclusion at the time of the earlier warnings is clearly a factor but it cannot be conclusive as to whether the warnings were valid or appropriate in the circumstances. The issue remains whether, in the context of the later dismissal, the combination of the earlier alleged conduct and sanctions and the presently alleged conduct is a valid reason to dismiss.

Incident of 17 December 2013

[87] It is agreed that the reason Mr Schmidt needed to go home was to change his clothes after a workplace incident. It is also clear that Mr Schmidt was embarrassed about the incident.

[88] In his statement Mr Schmidt says “I never suggested to Mr Cash that I would be returning to work that day.” 14 This is disputed by BHP Coal.

[89] BHP Coal’s evidence included a “Just Culture Decision Tree Form” 15 (the Form) completed 2 days after the incident makes no reference to the reason why Mr Schmidt needed to go home. It merely states:

Jason request to go home to get a change of clothes. Jason left site around 12pm and had not returned by 4pm. I rang Jason at 4pm to check his well being he told me he was about to ring me. I had a discussion about his duty to notify me of his intentions. Jason didn’t return to work for the rest of shift.

[90] On one hand there may be embarrassment for the employee in Mr Schmidt’s situation. Mr Anderson suggests it was clear regardless of any discussion that an employee in the situation Mr Schmidt found himself should be not expected to return to work.

[91] On the other hand, the note in the the Form says, “he told me he was about to ring me”. In re-examination Mr Schmidt puts a different response to this phone call by adding at the end he said that he, was going to ring to inform him that he would be at work the next day.

[92] On either version, Mr Schmidt did not notify and it was only when he was telephoned that the BHP Coal became aware that he was not returning to work.

[93] A sanction for failure to notify followed this conduct. It is not for the Commission to stand in the shoes of BHP Coal, and it may have been that the Commission may have had some sympathy for this employee given the reason he had to go home, but the facts are clear: he did not return to work; he did not notify properly; and he was sanctioned for it. BHP Coal was entitled to apply the sanction.

[94] On the evidence before the Commission, Mr Schmidt did not notify BHP Coal that he didn’t intend to return to work, and it was reasonable to issue the Step 2 Warning. The incident of 17 December and sanction are therefore relevant in BHP Coal’s consideration of the later incidents.

Incident of 19 December 2013

[95] The 2nd incident concerns Mr Schmidt being late for work, for which he was again sanctioned and placed on a Step 3 Final Warning. On the face of the disciplinary process it was the lateness that gave rise to the sanction. However in the dismissal, BHP Coal relied also on Mr Schmidt’s failure to notify the Supervisor that he had arrived late.

[96] Mr Schmidt’s case is that this warning was solely about his lateness for work on the day in question. It was not for a failure to notify. Further, Mr Schmidt submits he advised his Supervisor appropriately that he would be late for work on the day in question.

[97] There is limited evidence from BHP Coal as to the nature of this warning. It is nevertheless important given that it forms the basis of Mr Schmidt’s dismissal.

[98] The completed Form 16 is consistent with Mr Schmidt’s view he was being disciplined for being late for work.

[99] The breach of policy procedure or practice that occurred was “late for work”. It was further explained that he “has been spoken to about this matter previously and advised of his obligation to attend work on time”.

[100] In the record of discussion with employees regarding the breach it is written “had discussion with Jason about starting on time”.

[101] In re-examination he says:

A Just Culture Decision document has been provided by Mr Fox. Were you ever given a copy of that?... No

I’ll just get you to turn that document. It’s GF9. What is your understanding of the issue that was raised with you by the company? What were they concerned about?--- As far as I knew, it was just being late for work. That’s what I was getting disciplined for.

[102] Mr Schmidt was often late for work. Given the evidence he had been late as many as 42 times, it is hardly surprising that he would be disciplined at some point for this.

[103] However BHP Coal relies on this sanction on the basis that Mr Schmidt failed to notify, a matter that goes to the heart of the fuel tank incident. There is no evidence that at the time, Mr Schmidt was counselled or sanctioned for the failure to notify, merely for his lateness.

[104] The material before the Commission detailed informal discussions with Mr Schmidt about his coming to work late, including contemporaneous diary notes of those discussions, before he was placed on the Step 3 Final Warning. However, there is no evidence of specific remedial action taken by BHP Coal as to Mr Schmidt’s tardiness, or the apparent failure to notify his Supervisor. There was some evidence of performance improvement plans, but these appear at best haphazard. That BHP Coal did not seek to rely on them in the circumstances is unsurprising.

[105] If the employee was to take remedial action, and improve his conduct as a result of the disciplinary sanction, he would not be late for work in the future. That would be the purpose of the warning arising from the disciplinary process. It is axiomatic that if Mr Schmidt was not late, no need to notify would arise.

[106] BHP Coal says that the conduct for which he was sanctioned relevant to the dismissal was the combination of the lateness and the failure to notify, whereas the formal warning was only for lateness and did not mention the failure to notify.

[107] Mr Schmidt’s case is that it is unsafe to rely on disciplinary action reasonably thought by him to be about his lateness but thought (or at least asserted in the dismissal proceedings) to encompass his failure to notify.

[108] It is clear that an employee may be validly terminated for a reason that includes prior conduct. In BlueScope Steel Limited v Sirijovski (Bluescope Steel), the Full Bench noted:

In our view s387(e) does not refer only to warnings which relate to the specific kind of performance failure or conduct which has given rise to a dismissal. It is sufficient that both the warning and the dismissal relate to an employee’s “unsatisfactory performance”. In this regard we note that there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping. The warning in the present matter refers to the applicant’s “gross misconduct”...

In certain respects it might be said that the final warning was “stringent and onerous” which is certainly how the Commissioner characterised it. However the warning should be viewed having regard to the circumstances and employment context in which it was issued… Having regard to the circumstances in which the final warning was issued and its terms, the Company was entitled in making its decision about the dismissal to take into account the warning which had been given to the applicant. 17

[109] In that case, the employee was on a final warning following a significant safety breach. A conscious decision was made not to dismiss the employee for that incident but instead to impose other sanctions. He was dismissed for later operational negligence resulting in significant loss to the employer. The employee was dismissed for the combination of the final warning and the negligent operation, although the dismissal, while for a valid reason, was held to be harsh, unjust or unreasonable in the circumstances.

[110] As in BlueScope Steel, BHP Coal relies on the prior conduct and warnings together with the fuel tank incident as a valid reason. It seems undisputed that Mr Schmidt did arrive late for work and that the lateness gave rise to the formal sanction. The evidence points to a very poor record of late arrival at work. It is noted that prompt arrival is important for reasons including supervisors allocating work, safety discussion at the “pre-start” meeting, and exchange of relevant information, such as changes in contact numbers. 18 It is open to conclude from the evidence of Mr Fox19 it may be that BHP Coal attaches importance to notification to ensure supervisors are able to inform late arrivers of relevant material and to allocate them to appropriate tasks.

[111] I conclude that Mr Schmidt’s lateness on 19 December, in the context of a record of late arrivals warranted the sanction applied, and further, was relevant to BHP Coal’s consideration of the fuel tank incident.

The fuel tank incident - 8 May 2014

[112] There are 3 findings from the investigation that resulted in a conclusion that Mr Schmidt’s actions were misconduct: causing the damage; the failure to notify; and failing to secure the scene.

[113] Given the seriousness of the implications for Mr Schmidt in that he was dismissed, it is relevant to have regard to the principles in Briginshaw v Briginshaw 20 (Briginshaw) as they apply to the requisite understanding of ‘balance of probabilities’ in unfair dismissal cases.21

[114] BHP Coal’s case is that this employee acted in an unsafe manner, failed to notify his Supervisor of the damage within a reasonable time frame and failed to secure the scene.

[115] Mr Schmidt’s case is essentially his response was proportionate to the incident. He further submits that the investigation was flawed, and not commensurate with the serious consequences that flowed, namely his termination. Mr Schmidt disputes each of the 3 findings.
Was the fuel tank incident a significant incident or not?
[116] It is BHP Coal contention that it does not matter whether it is significant or not, because the requirement on the employee to notify the supervisor does not depend on seriousness: it is for the supervisor, once notified, to assess the seriousness or otherwise of the situation.

[117] Mr Schmidt’s submission is that he had to make a judgement call whether an incident is notifiable, and in any case, once the leak was brought to his attention he took steps to notify even if the damage was not significant.

[118] The duty to report may indeed be independent of the seriousness of an incident, but it is a factor in considering whether the employer has come to a reasonable conclusion in terminating employment that the unreported incident was not serious. Further, it is self-evident that not every incident will be notifiable. It is simple to imagine a paint scratch or similar damage from a collision, where reporting immediately might be considered a waste of time and resources, and reflecting poorly on an employee’s judgement.

[119] In this case, it is not in dispute that fuel was leaking from the gauge. Regardless of the rate of flow, the mere fact that the fuel tank was damaged and fuel was leaking makes the incident more than an insignificant one, although on the evidence before me, I cannot place it any higher than that.
Causing damage to the skid fuel tank
[120] Mr Schmidt says the case against him on whether he caused the damage by colliding with the skid tank is circumstantial. BHP Coal says Mr Schmidt admitted causing the damage and that there is no alternate explanation and no one else was involved.

[121] Mr Schmidt accepted, albeit that the evidence was circumstantial, that it was more likely than not that he caused the damage. He could not provide any cogent evidence one way or the other. His actions on having the damage drawn to his attention are consistent with his acceptance that he caused the damage.

[122] What is squarely in dispute is the extent of damage to the fuel tank. Mr Schmidt says it was minimal, with little fuel leakage. BHP Coal considered the leakage significantly greater.

[123] Mr Schmidt says the investigation into the damage was neither thorough nor undertaken urgently, which supports his view that the incident was not as serious as suggested.

[124] It seems that the most likely cause of the damage and the leak was a collision between the dozer driven by Mr Schmidt and the skid tank, but I cannot conclude positively on the evidence that Mr Schmidt caused a collision with the skid tank. However, for reasons stated later I do not believe the precise cause of the damage to be particularly important in this case.

[125] As to the extent of damage, for the reasons stated above, I can conclude no more than that there was damage and it was not insignificant because there was fuel oil leaking from the tank.

Failure to notify supervisor within a reasonable timeframe

[126] On the issue of timeliness, Mr Schmidt says he attempted to contact the Supervisor once the leak was drawn to his attention, but failing to make contact by radio or telephone, he notified at the first opportunity, namely once he had emerged from the pit, by sending a text message to a number he thought was relevant for his Supervisor.

[127] He says that the use of text messaging was common and in his view appropriate in the circumstances.

[128] BHP Coal points out that Mr Schmidt did not follow up on the notification at several opportunities later that day. Mr Fox in his statement 22 indicated that while he was satisfied that Mr Schmidt had made efforts to contact his Supervisor on the two-way radio and through text message, he could not ignore the fact that Mr Schmidt had 4 opportunities later that day to speak to Mr Marshall about the incident but did not do so. It is undisputed that Mr Marshall had not in fact received any text message from Mr Schmidt on the day of the incident.

[129] Further, BHP Coal says that the content of the text message did not convey either that Mr Schmidt had caused, or may have caused, the damage or the extent of the damage. This is important because his Supervisor takes responsibility for the incident and its consequences once notified.

[130] BHP Coal does not require the employee to assess the incident, but it is the employee’s job to give enough information to the supervisor so that the supervisor can assess the seriousness of the situation.

[131] Assessment of the seriousness of the situation is secondary to the duty of the employee to notify and provide sufficient information to the supervisor. Mr Schmidt did not do so.
Failure to secure and preserve
[132] On this alleged breach Mr Schmidt says he should not be held responsible given that 2 other employees had identified the leak earlier and had done nothing about it. It had been left to him to notify while they went about their other tasks, apparently including drawing fuel from the tank to power the pump.

[133] Mr Schmidt also points out BHP Coal relied on statements of Mr Keune and Mr Meaney but did not make them available for cross-examination. He invites the Commission draw an adverse inference from the non-attendance as witnesses in this matter. 23

[134] The evidence shows that Mr Schmidt was unaware of the collision and damage for some 30 minutes after it may have occurred; that the site was in active operation by that time; that other personnel were conducting operations; the site itself was beyond being secured from the initial incident, not least because Mr Schmidt hauled the pump into the pit for use.

[135] I conclude that there was insufficient evidence to make the finding that Mr Schmidt failed to secure and preserve the site. This conclusion is strengthened when considering the consequences for Mr Schmidt and applying the evidentiary considerations in Briginshaw.
Conclusion on the incident of 8 May
[136] For the following reasons I have concluded that Mr Schmidt did not comply with his duty to notify nor did he reasonably ensure his Supervisor had been informed of the circumstances for the following reasons:

● Mr Schmidt sent a vague text message which did not sufficiently describe the incident to allow his Supervisor to make a proper assessment of the seriousness of the situation;
● it does not matter whether the incident was serious or not, as that was not a matter for Mr Schmidt to assess but for his Supervisor; and
● Mr Schmidt failed later in the day to follow up when he was in direct contact with his Supervisor.

Conclusion on valid reason

[137] BHP Coal relies on 3 incidents to found this dismissal. The 1st was the failure of Mr Schmidt to notify that he would not return to work after needing to return home to change his clothing on 17 December 2013. The 2nd incident, 2 days later, was Mr Schmidt’s lateness for work. BHP Coal later characterised this as failure to notify his Supervisor that he had arrived late.

[138] As framed by BHP Coal, the 3rd incident on 8 May 2014 had 3 limbs.

[139] The 1st limb was that Mr Schmidt caused a collision with the fuel tank, damaging it and causing a leak. I found that while it is probable Mr Schmidt collided with the sled tank and caused the damage resulting in the leak, it is not proven to the requisite standard. However that conclusion does not alter my finding as to valid reason.

[140] The 2nd limb was that Mr Schmidt failed to notify his Supervisor of the incident, which I found to be sustainable on the evidence. The 3rd limb, that he failed to secure and protect the site, I found was not sustainable on the evidence.

[141] Whether these findings in regard to the 3rd incident support a valid reason for dismissal is a finely balanced matter.

[142] Whether the damage was caused by a collision between Mr Schmidt's dozer and the sled tank is not the essence of the matter. What is the essence of the matter is that on becoming aware of the damage, did Mr Schmidt do what was reasonably expected of him in the event of a leak in a fuel tank that he had moved? BHP Coal's expectations, and prudent management of health and safety issues, dictate that the employee must report the incident to a supervisor for assessment and any necessary action. Notifying the supervisor is central to the issue, and Mr Schmidt's efforts to notify were plainly inadequate and not prudently followed up when the opportunity arose later in the day.

[143] I conclude there was a valid reason to dismiss in that Mr Schmidt failed to notify, in a reasonable way, a significant incident to his Supervisor, coupled with the fact that he was already on a Step 3 Final Warning after earlier incidents, and that those earlier warnings were themselves sustainable in the circumstances.

[144] I turn now to other requirements of s.387.
Notice of reason
[145] Mr Schmidt submitted that BHP Coal was obliged to notify him of the grounds upon which he may be terminated or making a decision to terminate. It is not disputed Mr Schmidt was notified by the show cause letter and termination correspondence from BHP Coal.

[146] The reasons were said to include the Step 3 Final Warning, but BHP Coal recrafted this reason in terms of failure to notify, a matter directly relevant to the fuel tank incident, whereas the actual notice referred only to the lateness.

[147] I consider this notice to be defective. It is a significant overreach by BHP Coal to reword the basis of the previous warning and then to base its dismissal of Mr Schmidt in part on the alignment of the earlier warnings and the failure to notify in the fuel tank incident.

[148] While not of itself a fundamental flaw in the dismissal process, this aspect is significant in considering whether natural justice was afforded Mr Schmidt in knowing the case he had to answer.

Opportunity to respond

[149] Mr Schmidt submits that BHP Coal cannot go through the motions but he must be given a genuine opportunity to respond.

[150] Mr Fox deposed that BHP Coal considered responses to the questions but that no new information had been brought to light during the interview that changed BHP Coal’s mind. 24

[151] Mr Schmidt was interviewed several times, and given time to respond to the show cause. However the evidence tends to show BHP Coal had determined that it would dismiss Mr Schmidt and was seeking confirmation of Mr Fox's concerns rather than being genuinely open to hearing Mr Schmidt's response. In his statement rather than demonstrating what the response of Mr Schmidt was to the show cause letter, BHP Coal reiterated its concerns that led to the show cause:

For example it noted that Mr Schmidt had a poor employment record. The respondent states, “...I would have expected Mr Schmidt to take every opportunity to comply with requirements of the Mine particularly as they related to safety and equipment damage.” and further “I considered the fact that Mr Schmidt had in the recent past been involved in an incident with a grader following which reporting requirements were reiterate with him,...” 25

[152] BHP Coal’s case that Mr Schmidt should have taken his responsibilities about reporting more seriously than he did. On the evidence before me, that view was formed early, and there is no evidence that Mr Schmidt's responses would have moved BHP Coal's position.

[153] There is no evidence of actual consideration of Mr Schmidt’s response and therefore it is a reasonable conclusion that a firm decision to terminate had already been made and would be adhered to irrespective of anything he might say. It therefore did not constitute a proper opportunity to defend. 26

Support person

[154] Mr Schmidt was required to meet with his Supervisor at the 1st of 2 meetings without a support person despite, on the evidence, his express request for a support person. In subsequent meetings, a representative was available. Given the seriousness of the consequences this would seem to have been an unreasonable refusal by BHP Coal. This factor weighs against them, particularly as support options appeared to be readily available on appropriate notice. 27

Warnings of unsatisfactory performance

[155] Mr Schmidt submits the warning regarding the attendance should not have been taken into consideration.

[156] The Step 3 Final Warning did not adequately explain the concerns of BHP Coal about Mr Schmidt. For this reason it cannot be concluded that Mr Schmidt was warned about his unsatisfactory performance as it related specifically to issues of notification.

Size of enterprise
Dedicated human resource management specialists or expertise

[157] These factors are not applicable in this case

Other matters

[158] Mr Schmidt had significant service with BHP Coal, most of it without disciplinary incident.

[159] He also made submissions as to his status as a single parent in regard to his late attendances that led to the Step 3 Final Warning.

[160] Given Mr Schmidt’s long service, the lack of formal warnings or discipline until December 2013, the severe impact of the dismissal on him and his family and the fact he may have difficulty obtaining alternative employment in the local area, I find that the dismissal was harsh.
Conclusion as to factors
[161] While I have found there was a valid reason to dismiss Mr Schmidt, the other factors indicate the dismissal to be harsh, unjust or unreasonable in all the circumstances. Mr Schmidt was denied reasonable requests for a support person; the notice on the fuel tank incident relied on material not put to him in the earlier warnings and apparently designed to enhance BHP Coal's case that he failed to notify; and I am not satisfied that he was given a real opportunity to respond; BHP Coal seemingly having determined to proceed against him earlier; and dismissal was, in my view, harsh.

[162] On balance, having regard to all the relevant factors referred to in s.387, I have come to the conclusion that the termination of Mr Schmidt’s employment was harsh and unjust.

Remedy

[163] Mr Schmidt seeks reinstatement as his primary remedy. For reasons that follow, I have concluded reinstatement is inappropriate and proceed to consider compensation.
[164] While I have found that there was a valid reason for the dismissal (the combination of the fuel tank incident and the earlier warnings that placed Mr Schmidt on a final warning) I have also found that the dismissal was harsh and unjust.

[165] I have concluded Mr Schmidt should not be reinstated on the basis that BHP Coal has lost trust and confidence in him.

[166] It is well established that ‘trust and confidence is a necessary ingredient in any employment relationship’ 28 Where trust and confidence have been lost, reinstatement may be impractical.29 Loss of trust and confidence must be soundly based.30

[167] On the evidence before me, including his repeated late attendance and serial failures to notify, Mr Schmidt has lost the trust and confidence of BHP Coal, and that the loss asserted by BHP Coal has a rational and factual basis.

[168] I conclude reinstatement is not appropriate in the circumstances.

[169] It therefore falls to consider whether this is an appropriate case for compensation, and if so, the compensation that should be made in the circumstances.

[170] This may be a case in which compensation is an appropriate remedy, but I am yet to hear the parties on this question.

[171] The parties are therefore required to make submissions on the question of compensation, should they not agree between themselves.

[172] Orders will issue accordingly requiring submissions on the question of compensation should the parties not agree.

COMMISSIONER

Appearances:

Mr R Anderson from Construction, Forestry, Mining and Energy Union for Mr Schmidt.

Mr B Rauf of Counsel, for BHP Coal Pty Ltd.

Hearing details:

2015.

Mackay:

17 and 18 November.

Final written submissions:

Applicant, 21 January and in reply 9 March 2015.

Respondent, 20 February 2015.

 1   A portable fuel tank that can be towed as required.

 2   Statement of Jason Schmidt dated 27 October 2014.

 3   Exhibit A1, paragraphs 19-21.

 4   Applicant’s Submissions in reply at paragraph 33

 5   [2011] FWA 2665 at paragraphs 39-40.

 6   s.385 Fair Work Act 2009

 7   (1995) 185 CLR 410, 465

 8   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 9   BHP Coal’s Final submissions refer to a date of 27 December but all other material would indicate that it is the 17 December Step 2 Warning.

 10   Outline of submissions of BHP Coal at paragraph 36.

 11   Print S4213

 12   Ibid at paragraphs 23-24.

 13   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 14   Statment in reply of Jason Schmidt at paragraph 17.

 15   Statement of Glen Fox - attachment GF-8.

 16   Statement of Glen Fox - attachment GF-9.

 17   [2014] FWCFB 2593 (23 April 2014) at paragraphs 42-43

 18   eg evidence of Mr Marshall in Transcript dated 17 December 2014 at PN1028 and PN1108; in Transcript dated 18 December 2014 at PN1418 and following; Statement of Glen Fox at paragraph at paragraph 36-37 and evidence of Mr Fox in Transcript dated 18 December 2014 at PN1688 and following.

 19   Statement of Glen Fox at paragraph at 36-37 and in Transcript dated 18 December 2014 at PN1688 and following.

 20   [1938] HCA 34; (1938) 60 CLR 336.

 21   see H.J. Heinz Company Australia Ltd v Green and another [2014] FWCFB 6031; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 339-450; Budd v Dampier Salt Limited [2007] AIRCFB 797

 22   Statement of Glen Fox at paragraph 98-99.

 23   Mr Schmidt refers to the rule in Jones v Dunkel (1959) 101 CLR 298 by which the unexplained failure of a party to give evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. As to the application of the rule in unfair dismissal cases see Xiu Zhen Huang v Rheem Australia Pty Ltd - PR954993 and REX Airlines v Richards [2010] FWAFB 8753.

 24   Statement of Glen Fox at paragraph 84.

 25   Ibid at paragraph 99(b).

 26   Wadey v YMCA Canberra [1996] IRCA 568.

 27   Dewson v Boom Logistics Ltd [2012] FWA 9027; [2013] FWC 760.

 28   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; cited in Nguyen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354

 29   op cit

 30   op cit

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