TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T10111

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

The Australian Workers' Union, Tasmania Branch
[T9601 of 2001]

and

Goldfields Ltd

Industrial dispute - alleged unfair termination of employment - failure to issue warnings - discipline policy - conduct of investigation - procedural fairness - opportunity to be assisted - order issued

REASONS FOR DECISION

[1] On 6 June 2001 the Australian Workers' Union, Tasmania Branch (the applicant), applied to the President, pursuant to s.29(1) of the Industrial Relations Act 1984 ("the Act"), for a hearing before a Commissioner in respect of an industrial dispute with Goldfields Ltd arising out of alleged unfair termination of employment of Mr Barry Butler.

[2] On 7 June 2001, the President convened a hearing at the Magistrates Court, Sticht Street, Queenstown, Tasmania, before myself, to commence on 2 July 2001 at 9.30 am. At the request of the parties the hearing was adjourned until Tuesday 3 July 2001 at 10.30 am. On that date Mr R Flanagan appeared for the Australian Workers' Union, Tasmania Branch ("the union") and Mr W J Fitzgerald appeared for Goldfields Limited ("the company"). There was an underground inspection on 20 August 2001 and further hearing days in Queenstown on 20, 21, 22 August and 24 October, and in Hobart on 28 November and 10 December 2001.

Background

[3] Goldfields Ltd operates the Henty Gold Fields. Mr Barry Roland Butler was employed by the company at the Henty site under various contractual arrangements from October 1999 until the date of his dismissal, 5 June 2001. Prior to his dismissal he was a full time employee, and had been working 12 hour shift rosters for approximately eighteen months.

[4] Mr Butler is an underground miner, with 32 years experience, who was regarded by the company as an experienced and flexible worker. During his time with the company he was an air leg miner. This involves the operation of a hand held machine, approximately 90 kg in weight. He had not at any time received warnings or individual counselling in relation to his work performance or his conduct. He had been part of general shift meetings during which the crew were addressed regarding horseplay in the showers. He had attended a training session during which the company's disciplinary policy had been presented.

[5] On Thursday 12 April of 2001 Mr Butler injured his back at work, resulting in two collapsed discs. Mr Butler has made a workers' compensation claim in respect of this injury. After the injury he continued to work at his normal duties on air leg for a short time. Later, on medical advice, he was placed on light duties, involving work above ground. Toward the end of April he returned to work underground, on alternative duties.

[6] Mr Butler had an MRI scan on Saturday 19 May 2001. 30 May was the last day that he performed work at Henty. On Thursday 31 May he saw Dr Doyle who told him that the results of the MRI scan would be sent to the company. The doctor sent a report to the company. The evidence of the person responsible for co-ordinating rehabilitation, Mr Robert Casey, was that he received the report from Dr Doyle either on 1 June or 2 June 2001, prior to the date of Mr Butler's dismissal. He used the MRI results to put a new rehabilitation plan in place. It was his practice to discuss changes to work plans with the department manager (in this case Mr Dale Burgess] and to send them a note with a courtesy copy to the mine manager, Mr Andy Tunstall.

[7] On Wednesday 30 May there was an incident in which a substance, alleged to be human excrement, was smeared on a knob on the steering wheel of a truck. The truck was driven by Mr Nathan Williams, who worked for C H & R B Williams, a company which operated a fleet of trucks at Henty. Mr Williams' hands came into contact with the substance.

[8] Mr Williams had shown the substance on his hands to Mr Butler and had asked him if he was responsible. Mr Butler denied that he was and said to Mr Williams that the substance was grease.

[9] Mr Williams did not lodge a complaint about the incident, but, at the end of the shift, he commented to Mr Jeremy Weller, a company employee, that he had been dodging water hoses all night and had had "shit" smeared on his steering wheel. Mr Weller reported the steering wheel incident to Mr Dale Burgess, the underground mine co-ordinator, at 6.45 am that same morning.

[10] Mr Burgess conducted an investigation into the incident and concluded that Mr Butler was the perpetrator. Whether or not the company conducted the investigation properly is one of the issues in dispute.

[11] A report was prepared by Dale Burgess dated [Thursday] 31 May 2000; it says:

"Incident Investigation - Human Faeces on Wag 426 Truck

Upon investigation into the issue raised by various personnel on the above mentioned issue, please read the following report:

On Wednesday 30^th May at approximately 2.15 am, Nathan Williams began operating his machine - Wag 426 truck #2. He proceeded to fuel up and head down to Mt. Julia Decline to haul waste. As he approached the top of the decline, Les Clayton, who was Shift Bossing at the time, asked him to return to the grizzly and go on the rock breaker. This was due to Barry Butler being required to leave his job (loading the grizzly) and retrieve the DC5 from 2317 to the fuel bay. Barry left the job and was picked up by Rodney Archer. Nathan assumed grizzly loading with Elf 2. At around 3.10 am Nathan was relieved of bogging with Elf 2, by Barry who had returned prior to this time after completing his job with the DC5. Nathan then entered the Grizzly ore stockpile where he had parked the truck an hour earlier. Upon entering the truck he grabbed the steering wheel and noticed that human faeces had been smeared over the wheel. His hands were contaminated by the substance.

Les Clayton verifies this story. Les has indicated that Barry Butler was the only other person working in this area during this period...

Personnel who were working that shift are as follows: [13 names listed]

All of these people have been accounted for in other parts of the mine at the time of the incident. This can be verified by Mick Close, Mick Frerk and Les Clayton.

During this investigation it was also revealed the [sic] Barry Butler had previously urinated in Tim Kremmer's drink bottle in the crib room in front of numerous witnesses, whilst Tim was having a smoke. When Tim returned he drank from the bottle oblivious to the situation.

This crew, including Barry has been counselled twice prior to these events on horse play and similar occurrences.

Behaviour of this type is totally unacceptable and should [be] dealt with in the strictest possible manner. "1

[12] On Monday 4 June 2001 Mr Butler returned work after the between shift break. He was called to an interview with Mr Tunstall and Mr Burgess. The evidence differs as to whether or not Mr Butler requested the presence of a witness. Mr Butler was adamant that he had, and Mr Tunstall and Mr Burgess were equally adamant that he had not.

[13] At that meeting Mr Butler denied responsibility for putting the substance, which he said was grease, on the steering wheel. Another alleged incident was raised, which was that Mr Butler had urinated in an employee's drink bottle. Mr Butler said that he had only pretended to do so.

[14] Mr Butler was stood down for 24 hours, during which time further investigations were conducted. Other incidents involving Mr Butler emerged during this phase of the investigation.

[15] On Tuesday 5 June there was a second interview with Mr Butler. Again, the evidence differs as to whether or not he requested the presence of a third party, on this occasion, the union. Mr Butler claims he did, Mr Tunstall and Mr Burgess claim that he did not. What is undisputed, however, is that he was not offered the opportunity to have a person of his choice there to assist him. At this meeting he was handed a pre-prepared letter, dated 5 June 2001, which says:

"Dear Barry,

I have now completed my investigation into the incidents we discussed in my office on Monday June 4^th. In doing so, I have spoken to various members of the underground workforce and their supervisors. The findings are as follows:

On Wednesday 30^th May, you smeared excrement on the steering wheel of the Williams truck in response to a practical joke played on you by Nathan Williams. This is totally unacceptable from a moral, legal and health point of view and is classified as Serious Misconduct, punishable by dismissal.

On previous occasions, you committed other acts of indecency, such as urinating on people and throwing excrement around in the showers, urinating (or pretending to urinate) in people's drinks containers and putting your penis inside the sandwich of a fellow employee.

In view of the above, you are hereby dismissed from your employment at Henty.

A M Tunstall
Mine Manager"2

[16] The union claims that the dismissal was unfair and Mr Butler is seeking reinstatement.

THE EVIDENCE

[17] Witnesses for the applicant were:

[18] Witnesses for the respondent were:

The Mining Culture

[19] A considerable amount of evidence concerned the existence of an allegedly long-standing culture amongst underground miners of practical jokes, horseplay and behaviour which, in a different context, would not be acceptable. The union contended that Mr Butler had been selectively and unfairly targeted and disciplined, whilst the behaviour of other employees had been ignored.

[20] Mr Butler's evidence was that he had pretended to urinate in someone's drink container, which he described as "acting the fool"3, and that he had pretended to put his penis inside a sandwich. He denied throwing excrement around in the shower, claiming that the substance was chocolate, thrown with the intention of making others believe it was excrement. He said that the behaviour of his crew was particularly boisterous at the end of a roster "...At the end of a roster we all get a little bit excited."4 There had been occasions when he had been urinated upon in the showers and he would probably retaliate - "I would probably try and pee back, yes".5

[21] Mr Butler said that it was not only his crew that played practical jokes, "it was worse on other shifts"6. He said that he had been told there was faeces in the decline utes on other shifts. A similar practical joke had been played upon him, involving the smearing of faeces "over the mesh on me job"7. He had reported it to Marty Vankoutrik, his shift boss, but nothing had happened.

[22] Mr Butler described other practical jokes which he said were played, including what he said was a very dangerous practice involving greasing "all the steering wheels and stuff on machinery."8 He said that was "rampant".

[23] Mr Rory McCann, who testified that he had been in the mining industry for 25 years, described in colourful terms the culture of the industry and the role of practical jokes. He said that the practical jokes took many forms, and described some which he had played, and some which he had been the victim of. He described how he had bombed his workmates with flour in the crib room and then soaked them with a one-inch water hose. In return, his fellow workers "got me and did heinous crimes against my body.

...

...it's endless...part of the heritage of the mining game. It's been happening here at Mr Lyell for one hundred years, because it is a very hard thing we do, risk our lives in a dirty, dusty, dangerous environment up here...you don't know every single shift, whether it'll be your last...it naturally breeds a hard-nosed attitude where that humour is your natural resort to actually overcome those daily bloody tribulations. Humour is your only resort and it is endemic..."9

[24] Mr McCann said that management condones the behaviour and that he had never known of anyone being fined or sacked for practical jokes. He said, in relation to the throwing of excrement, or a substance resembling excrement:

"it wouldn't worry me in the least because we work in a dark, shitty environment and shit and all the aspects that surface people abhor - regard it as ugh jeez, keep it away. We don't give a rats arse old brother and that's how it is. All of us."10

[25] Mr McCann said that he had heard of people at Renison "crapping in miner's gumboots...or peeing in their flasks and things like that."11

[26] Mr Lesley Clayton, shift boss, testified that the company policy was that horseplay was not to be tolerated. He said that over the last ten years practical jokes had gone from being an everyday occurrence to not being tolerated at all.

[27] Mr Dale Burgess, underground mine co-ordinator, said that there was really no place for practical jokes in the Henty philosophy, but agreed that practical jokes took place:

"Small practical jokes are fine. Everyone has a bit of a laugh and a joke every now and then but when they contravene safety or health or risk another person's well being, then it's gone too far"12.

[28] Mr Nathan Williams said that during the time he had been working at Henty he had been involved in practical jokes, including, earlier that night, turning Mr Butler's hard hat liner inside out, a joke that had also been played upon himself.

[29] Mr Williams and Mr Butler had laughed at the steering wheel incident. Mr Williams said "after a while I seen the funny side of it. First off I didn't."13 Mr Williams had not made a complaint in relation to the incident.

[30] Mr Williams agreed that he knew of Mr Butler's reputation regarding practical jokes "... They all did it. Everyone did it. My pop did it. Everyone did it."14

[31] Mr Williams described the role of the practical joke as making"...the night go a lot quicker and you have a bit of fun, you're not bored at work all the time."15

[32] On the same night as the steering wheel incident, a Mr Rodney Archer had turned a hose on him, which Mr Williams described as: "just another practical joke"16. He said that such practical joking did not take place regularly, but "every now and then. Just cheers the night up."17

[33] Mr Andy Tunstall, mine manager, described the philosophies at Henty, which he depicted as a fairly modern mine, with an emphasis on people taking responsibility for safety. He said that miners occasionally played practical jokes on each other, "it's part of the game"18, but, he said:

"you need to be very careful to differentiate between practical jokes which are harmless and which have no effect on the operation or on people's safety and ones which aren't harmless."19

Was Barry Butler warned or counselled prior to the dismissal?

[34] Mr Butler was asked if he had ever been counselled in relation to the incidents outlined in his letter of termination. In relation to allegedly urinating in someone's drink bottle and placing his penis in another person's sandwich, he said: "Well, there would be no need to counsel me. I never done it. I pretended to do it, but I didn't do it"20.

[35] Mr Butler said that the incident involving the throwing of a substance in the shower had taken place six or seven months ago, or even longer, as was the case with the drink incident. In relation to the allegation that he had urinated on someone in the shower, he said that had taken place about five months ago. He had never been disciplined in relation to that incident.

[36] He said that there was a very brief mention during a crew meeting in relation to events in the shower [the throwing of a substance] which had taken place on the last day of a roster. The meeting was conducted by Les Clayton, and, Mr Butler said, was mainly about noise.

"...and he just said, keep your noise down, keep it clean or words to that effect and that was it. It was just nothing."21

[37] Mr Butler was asked if he would agree that the crew had been counselled twice relating to the incidents in the shower and that he had been part of the session[s]. Mr Butler said:

[38] He said that it had not occurred to him that the meetings were directed at him. He said; "It was addressed to the whole crew, not anyone by name, no."23

[39] Mr Les Clayton testified that a friend had come to his place and told him about an incident in the shower involving faeces. This had involved Barry Butler wiping "his finger on his backside and wiped it on one of the guys there"24. The employee had described the incident as: "Just horseplay and mucking around in the shower."25 Mr Clayton did not raise the issue with Mr Butler. He said that the reason that he had not done so as Mr Butler's supervisor was because he was not at work when the incident was raised with him. He said that it was "probably 10 months ago."26 He had not reported it to the company because the person involved had asked him not to. The company became aware when a second similar incident, involving Mr Butler, occurred, which was reported. As far as Mr Clayton knew, it was reported to the foreman. The person who told Mr Clayton about it had also told Mr Burgess. This was probably six or seven months ago. Mr Clayton was not aware of any warning ever having been issued.

[40] Mr Burgess' evidence, however, was that he was aware of Mr Butler's reputation for horseplay, but that no names had ever been raised.

"...There were no individuals ever, or names raised at a crew level and that was why the whole crew was briefed as a crew."27

[41] Mr Burgess said that the counselling he had conducted with the crew was for:

"...horseplay and just sort of their general rowdy behaviour that had been raised by a few individuals around site that had seen them mucking around in the shower. No specifics..."28

[42] He said that the first session was probably twelve months ago and the second six months after that. The first had been because the crew were seen performing dangerous acts in the showers, chasing each other and throwing soap at each other. The second counselling session was, again, just in relation to general horseplay and tomfoolery in the showers. Mr Burgess said that it had not been suggested that faeces was thrown.

"...there was just allegations of guys just trying to grab each other on the arse, and that type of thing. Nothing in particular, but it was again, a repeat of their behaviour...no individuals were named, but we briefed the crew and just said, look, get your act together and start sorting your stuff out."29

[43] Mr Clayton had spoken to E and F crews in the crib room about the memo and about the horseplay. Mr Butler had been present. The issues that had been covered in that meeting were: "Horseplay and the carrying ons in the showers"30.

[44] The mine manager, Mr Andy Tunstall agreed that the occasion of the dismissal was the first time that Mr Butler had been subject to any disciplinary action. He agreed that there had been no previous warnings, apart from counselling of the whole crew about the incidents in the showers. He agreed that Mr Butler had not received any individual counselling.

Henty Gold Mine Discipline Policy

[45] A document was introduced into evidence, titled Goldfield (Tasmania) Ltd Henty Gold Mine, Human Resources Policy, Discipline.

[46] Mrs Catherine Bartlett testified that Mr Butler attended a training session on 30 January 2001, at which there was a presentation of the Henty Discipline Policy. Fourteen slides were shown concerning the discipline policy

[47] Relevantly, the Discipline Policy contains the following:

"...2. Purpose

The purpose of this policy is to provide a consistent framework for the management of the day to day performance improvement process by:

• providing a consistent framework for the resolution of performance issues between managers and subordinates.
• ensuring that people receive early feedback when performance falls short of expectations, and
• ensuring that the procedure for dealing with performance improvement is fair in that people are warned, allowing them to clearly understand the consequences of their behaviour and performance."31

[48] The document sets out a hierarchy of offences with the disciplinary process to be followed at each of four levels, which are: minor misconduct, major misconduct, serious misconduct and very serious misconduct.

[49] The examples given of "major misconduct" include "dangerous work practice" and "indecency or horseplay". The "normal disciplinary process" for offences at this level are: firstly, a verbal warning; for a second offence a written warning; and for a third offence dismissal with notice.

[50] The examples given of "serious misconduct" include "dangerous horseplay". The disciplinary process at this level is a written warning for the first offence and dismissal either with notice or instant dismissal for a second offence.

[51] "Very serious misconduct" carries a penalty of dismissal with notice or instant dismissal. This category does not include any reference to indecency or horseplay.

[52] Each level contains the statement: "this list is not intended to be exhaustive but rather illustrative of the seriousness of offences in this category."

[53] The evidence of Mr Clayton was that he would describe incidents such as those in the shower as indecent horseplay.

[54] Mr Burgess said that he would regard faeces on the steering wheel as more than horseplay, he would describe it as "indecency"32 He agreed that the disciplinary process outlined, involving a verbal warning had not been applied, because, he said, in Mr Butler's case, the offence was regarded as "gross indecency"33.

[55] Mr Burgess said that he did not believe that Henty had treated Mr Butler differently to the manner prescribed in the policy, because:

"This policy is only to be used as a guideline and it's managerial discretion on an individual case how it should be applied."34

[56] Mr Tunstall said that there was nothing in the policy which related to the particular offence [for which Mr Butler had been dismissed]. He saw it as:

"...an offence of gross indecency and a very serious breach of safety, so I put [it] in the category of basically, according to this policy, very serious misconduct."35

[57] His interpretation of indecency, he said, might be telling a fairly crude joke and somebody being offended, and horseplay might be playing practical jokes on someone which did not threaten their safety. He did not see the offence [of smearing excrement on a steering wheel] as being within that category. Mr Tunstall said:

"...It's been explained to me by the human resources people that those were just guidelines, that ultimately the department manager was responsible for working out whereabouts it sat, what the seriousness of the offence was"36.

[58] Mr Tunstall said that the reason they had not given Mr Butler the opportunity to correct his unacceptable behaviour was because:

"...that's an option, according to our policy. In the case of a minor offence or a reasonably minor offence that would be the course of action we would take...but for a very serious offence like this, it's unlikely that a warning would change the employee's behaviour, particularly with the history of it."37

The events of 30 May 2001

[59] Mr Butler's evidence was that he finished his crib break some time after 2 am, probably 2.15 or 2.20 am. After a short while he was sent to pick up a charge-up unit and return it to the magazine, with Mr Rodney Archer, who was driving a truck. When they got there they did not have the key, so they had to return to the shift boss's office to collect the key. This was at approximately 2.30 am. It took less then a minute for Mr Archer to collect the key off the shift boss. Mr Archer eventually returned him to the shift boss's office some time between 3.30 and 3.50 am. Mr Butler said that he then went back to his duties. After about five minutes Nathan Williams came up to him, showed him his fingers and said that someone had put something on his steering wheel.

[60] Mr Butler said that it did not look or smell like excrement. They laughed about it, and Mr Butler, by way of a joke, told Mr Williams it was all down his back as well.

[61] He did not know where Mr Williams' truck was parked. He said that at the relevant time there was himself, Mr Williams, Mr Clayton and Mr Archer in that part of the mine. He said that the electricians or fitters could have been there but that he didn't see them.

[62] Mr Clayton gave very detailed evidence about the events of 30 May 2001. This evidence covered the tasks that were being performed by the crew and the times that certain events took place. He said that he was able to account for every person in the mine. In the vicinity of Mr Williams' truck at the relevant times were himself, Mr Williams and Mr Butler. Mr Williams' truck was parked near the ore stockpile. Mr Butler would have been aware of where the truck was parked. After crib time, the people who had access to the truck were Mr Williams and Mr Butler. He said that it was not possible for someone else to come into the area without him seeing them.

[63] The evidence of Mr Williams was that he had been driving the truck until crib time. At the end of the crib break, at 2 am, he reversed Mr Butler's hard hat lining as a joke. They had both laughed about it. He continued driving the truck until he relieved Mr Butler. There was no faeces on the truck at that time. He had taken over Mr Butler's job when Mr Butler went to get the charge-up unit and take it to the magazine.

[64] Mr Williams said that he did not see anyone else around at the relevant time, but "it could have been possible."38 He agreed that if anyone else had been in the area Mr Clayton should have been able to see them.

[65] At about 3.45 am he got into his truck, started it, put his hands on the steering wheel and put his hands in the substance. He turned the truck off, cleaned his hands in a water hole that was close by, then walked over to Mr Butler and asked him "Was this you?"39 Mr Butler said that it wasn't.

The Investigation

[66] The evidence established that there were two stages to the investigation into the incident; the first leading to the company standing Barry Butler down on Monday 4 June, which was the day he returned to work after his days off. The second was a further investigation during the 24 hour stand down period.

Stage 1 of the investigation

[67] The catalyst for the investigation was Nathan Williams' comment to Jeremy Weller when he said: "someone put shit on my steering wheel"40. The evidence of both Mr Williams and Mr Weller was that it was a comment in response to a query about how his night had been. Mr Weller's evidence was that Mr Williams said that he had had:

"...a shit of a night...I've been dodging water hoses all night and I had shit smeared on my steering wheel."41

[68] Jeremy Weller took the comment sufficiently seriously to report it to Dale Burgess, who in turn reported it to Andy Tunstall. Mr Weller's evidence was that he reported it to Dale Burgess later on that same morning, in the following terms:

"I just stated to Dale that it was said to me in the toilets this morning that one of the Williams guys had shit smeared on his steering wheel."42

[69] Mr Burgess's evidence was that Jeremy Weller came into his office at 6.45 am that morning and said that he had run into Nathan Williams, who was cleaning human faeces off his hands and trying to get rid of the smell.

[70] The evidence of Mr Tunstall was:

"Initially Dale Burgess, the mine co-ordinator came to see me in the morning - I think it was on the Thursday morning - and mentioned that Jeremy Weller who is ESO had reported to him that he had seen...Nathan Williams the Williams truck driver washing human excrement from his hands and that it had been placed on the steering wheel of his truck by Barry Butler"43.

[71] Mr Tunstall said that he asked Dale Burgess to conduct the investigation, to interview Mr Williams and all the other witnesses underground. He said that "from memory" Mr Burgess conducted the investigation on the Friday [1 June 2000]. He said that Mr Burgess had interviewed Mr Williams at 7 am in the morning when he came on shift and had then spoken to Les Clayton to account for the whereabouts of the people on the shift.

[72] Mr Tunstall said that he was satisfied that the investigation had been conducted properly:

"Because the people who conducted it, Les Clayton and Dale Burgess are both very thorough individuals..."44

[73] Mr Burgess testified that he had spoken to Les Clayton prior to Barry Butler being stood down. He said:

"...Normally, I would have caught up with him that evening but because we had a shift co-ordinators' meeting, it was delayed to the following Friday, so I spoke to Les when he first came in and asked him what he knew about the incident and, again, he was fairly cloudy and subsequently I interviewed Les later on down the track as part of the initial investigation into the whereabouts of people at that time of the incident so we could get a picture of where people were at the time.

...

We had several conversations about where people were at the time and who was involved with what, et cetera, and yes, we had two or three conversations."45

[74] Mr Burgess said that he established it was Barry Butler through a process of elimination. He said that there were only 13 people underground on that particular shift.

"We spoke to each and every one of them and their supervisors and doubled up and made sure that we knew where they were during that period of time...We checked with them and we accounted for everyone else."46

[75] Mr Burgess was asked how he had conducted the investigation. He said:

"Just by talking to the individuals concerned and their supervisors and making sure that we knew their whereabouts"47.

[76] He said that he contacted Nathan Williams' supervisor, Mr Dale Bryan and told him that he wanted to see Mr Williams at 6.45 am the next morning, to get his version of events.

"...You interviewed Nathan?..........Yes, that's correct and once that Nathan had verified the story."48

[77] Mr Burgess said that he asked Mr Williams who had put the faeces on the truck and he replied that Barry Butler had done it.

[78] Following the investigation, he said, he gave the report to Andy Tunstall. He said that it was the Friday before he had confirmed all the information.

[79] During cross-examination Mr Burgess's evidence was that, during the initial investigation, he did not speak to people individually, but only to their supervisor, Les Clayton.

"We investigated it and we spoke to their supervisor who was Les and he told us their whereabouts and what they were doing at the time."49

[80] Mr Burgess agreed that he had relied principally upon Mr Clayton for the evidence about where employees were in the mine. He also agreed that he had spoken to no-one on an individual basis [during the initial investigation] excepting for Nathan Williams and Les Clayton. Mr Burgess was asked his view of Mr Clayton in terms of reliability and professionalism. He replied: "He's very good. I trust him."50

[81] Mr Burgess was asked to comment as to why Nathan Williams had not reported the incident directly. He said:

"I think there is a bit of a protection culture with mining crew and the men. I think he may have been a little bit scared to rock the boat or scared of some form of retribution by people, et cetera."51

[82] In relation to what he meant by retribution, he said:

"...there's maybe a combination of things. It may be that Barry has got a reputation as being a tough man and a lot of people are physically scared of Barry. I'm not saying that that's the reason why he didn't. I'm just saying there could have been a number of reasons why."52

[83] On Monday 4 June 2001 Mr Butler was interviewed by Mr Tunstall and Mr Burgess and the results of the first stage of the investigation were put to him. He denied that he was responsible for the substance on the steering wheel, and said that it was not excrement, but grease. He was stood down for 24 hours to allow further investigations to take place.

Stage 2 of the investigation

[84] Mr Dale Burgess's evidence was that during the stand down period:

"Again, we went over where everyone was at the time. We spoke to Les Clayton and Nathan again, who were the two key people. We made sure that all the electricians and fitters were where they said they were, all the guys were where they said they were. We went through the story again and we just made sure people repeated their story....

How did you conduct the investigation?.........Just by talking to the individuals concerned and their supervisors and making sure that we knew their whereabouts."53

[85] However, during cross-examination Mr Burgess said that on the Monday, he spoke to them about the "other issues but we didn't speak to them about their whereabouts on that particular shift."54 He said that the employees had raised these issues with him.

"When we caught up with the guys the following week there was another supervisor on and we talked to those guys individually and also that supervisor talked to them and they explained to them - or to us - the other activities that Barry had been up to - that they allege Barry had been up to....it was just demonstrating similar behaviour and that's why we recorded it."55

[86] He was asked:

"Did you speak to any of the other employees individually yourself particularly during the suspension period?.........They'd finished their rotation and they were due back on the same day, so none of them were on the lease at the time."56

[87] Mr Burgess said that some were reluctant to raise the shower incidents, in his view because:

"Again for fear of retribution by Barry."57

[88] Mr Tunstall's evidence was that, as part of the further investigation, he spoke to Pat le Mercier, one of the shift bosses and asked him to speak to the crew to find out what they knew about the water bottle incident and the truck incident. Mr Tunstall went underground and spoke to one of the operators about the water bottle. He said that the feedback he got on the water bottle was that a lot of people had seen Mr Butler take the water bottle from the table, unzip his fly and place it under the table.

[89] He said that the fact that Nathan Williams had taken Mr Butler's lining out of his helmet as a practical joke came to light.

"So, I surmise from that, that Barry's response to that was...a bit of retaliation for that practical joke that was played on him...basically, it provided a motive...for the retaliation."58

[90] Mr Tunstall said that a number of other incidents came to light as a result of Pat le Mercier speaking to the crew, regarding:

"...throwing excrement around in the showers, rubbing it on people and placing Barry's penis in a sandwich of another employee in the crib room."59

[91] Mr Tunstall said that he telephoned Mr Williams and asked him what the substance was on the steering wheel and his response was that it was excrement.

[92] Following the further investigation Mr Tunstall and Mr Burgess decided on an appropriate punishment. They decided that it was termination, given the severity of the offence, and Mr Tunstall prepared a letter [of termination]. Mr Tunstall said that he did not believe that he had prejudged Mr Butler by doing that, because he had already conducted the [first] interview, and based on his evidence and the evidence they'd received talking to the crews and shift boss and Les [Clayton's] evidence there was nothing that could be added which would change the case unless Mr Butler had some new evidence and he could have brought that up the following day. Mr Tunstall said:

"...once I'd completed the investigation and discussed with Dale what the appropriate course of action was, we decided it was termination, given the severity of the offence, and I prepared a letter in accordance with our policy..."60

[93] Mr Tunstall said that the factors which caused him to come to the decision to terminate were:

"...basically that at crib time Nathan had removed the lining from Barry's helmet as a practical joke. The significance of that was, given that it was their last shift, Barry was fairly likely to retaliate with another practical joke...We looked at whether it could have been anybody else and Les' evidence suggested that it couldn't have been. Barry had a prior history of doing those sorts of things in the showers and committing other indecent acts within the workplace...when I put it to Barry that he had done that sort of thing, there was no - a normal person, if they hadn't done that, would be indignant and would have said, no way, I haven't done that. Barry just took it fairly calmly and shook his head. There was no real denial of the fact that he'd done it...."61

Les Clayton's evidence

[94] The evidence of Les Clayton was that the first he knew of the steering wheel incident was when he came back on shift after his break of five days:

"When did you learn of that?...........I learnt it on my first shift back from my break.

And how did you learn of that?.........I was standing outside having a cigarette and Dean Smith, one of our guys there, he mentioned it.

...

Right. What did he say to you?........He just said, I hear Barry got the sack for some shit on the truck.

Was this straight after the ...completion of the end of the shift?........No, I didn't know Barry had been dismissed.

...

COMMISSIONER: So, when you said your first shift back from break, you mean a break of a few days?.......A break of five days.

...

MR FITZGERALD: So did you see Dale Burgess regarding the incident?........When?

On your return from your break?.......Yes, I was out there talking to Dean and then Dale - when Dean told me - and then Dale came out and said Les, can I see you.

Now Dale - just to clarify - who is Dale Burgess again?...........Dale Burgess, the mine coordinator.

Right. So you report to him?.......Yes.

So what happened - what was the conversation between you and Dale?........He asked me roughly the same sort of questions you're asking me about; did I know about any of this stuff being put on the truck and that. I said, no, I didn't...

...

And what did you learn at that time?.........Well, I learnt off Dale that Barry had been dismissed for actually putting faeces on the truck which I didn't know about and I went down underground and E and F crew were on and I just explained to them, no, I didn't know anything about it"62.

Nathan Williams' Evidence

[95] Mr Williams said that on the night in question, when he found the substance on his hands, he immediately washed it off using hand cleaner from the crib room.

"I washed my hand and I cleaned the steering wheel with hand cleaner and I could still smell it around a little bit."63

[96] He said that the smell was still on the steering wheel but not on his hands.

[97] At the end of the shift, when he ran into Jeremy Weller, he had got changed and gone into the toilets where the sinks were and washed his hands and face, as he did every morning and every night. His comment to Jeremy Weller was just something in passing, and not in any detail. He had not reported it, because he did not want any trouble. The trouble he referred to, he said, was: "basically what we are doing now"64. He had no concern that there would be some sort of violent act committed against him if it was reported.

[98] The evidence of Mr Williams was that he worked five days on, five days off, five nights on and five off. He said that after the conclusion of the shift [on the night in question] he was on his five days off so his next shift would not be until five days later. He was asked if he knew of any investigations that the company may have conducted during that time:

[99] Mr Williams was asked whether he had mentioned the incident to anyone else, and whether he had made any comment to his immediate supervisor, Mr Dale Byran. He said: "Only that someone put shit on my steering wheel last night."66 He said that he made that comment at seven o'clock that morning in the car park. Mr Bryan's reaction had been:

"Just basically, do you know who done it and I said, no. And he said - I don't know what he said then.. I don't know if he said he was going to follow it up or not. I can't remember."67

[100] Mr Williams said several times during his evidence that he did not know who was responsible for placing the substance on his truck. He also said that he believed Mr Butler when he told him that it was not him.

[101] He said that he was a bit shocked when he learned that Mr Butler had been dismissed and the reason was:

"Well, I thought the old saying goes, innocent until proven guilty"68

The Interviews

[102] Mr Barry Butler said in his evidence that on the morning he returned to work after his rostered days off [Monday 4 June 2001], he was called into Andy Tunstall's office. Mr Butler said that he had "no idea"69 what was going to happen when he attended the first meeting. A list of complaints was read out to him. Mr Butler said that he "explained to him that I didn't do it"70. He said that the complaints were:

"Wiping my penis through someone's sandwich...peeing in a cordial bottle...and putting excreta on a steering wheel of a vehicle"71.

[103] Mr Butler said that he tried to explain, but was not listened to. He said that he was offered no opportunity to be represented in those discussions. He was stood down for 24 hours. On Tuesday 5 June 2001 he returned to work. He did not commence work, but, instead, a second interview took place at about 7 am.

"I then went to Andy Tunstall's office and he went through the complaints again. He said, we've found you guilty. I said, I need union representation."72

"...I asked for union representation and he said, there's no need to - you've no need to have union representation because as far as we're concerned you've done it."73

[104] Then, he said, Mr Tunstall pulled out a sealed envelope and handed it to him. The letter contained the reasons for his dismissal.

[105] Mr Butler said that on the Monday he had not asked for union representation, just for representation. He thought one of his mates might have come with him. On the Tuesday he asked for union representation.

[106] During the suspension period he rang the union and made them aware that he had been suspended. He said spoke to Mr Flanagan who advised him to ask for union representation at the second interview.

[107] He was, he said, totally confused during the interviews. He said he had no idea what was going on:

"I was just brought straight in, cold, and they hit me with it straightaway."74.

"I asked for a union representative before and I was offered to see the general manager - an appeal.

You were refused that right?.........He said I can do it but then, as I said, he handed me the envelope and told me that I was dismissed, finished, sacked. How can I appeal if I'm sacked?" 75

[108] Mr Dale Burgess testified that at no time had they offered Mr Butler a witness or a representative, but he had not requested one. Mr Burgess said that he was "absolutely positive"76 of that.

[109] He said that at the second interview:

"...we said that we'd reviewed his version of events against all the other people's version of events and we still weren't satisfied that Barry was telling the truth...and we were fairly certain in our minds that the incident had occurred and that Barry had been responsible."77

[110] Mr Burgess said that the "floor was open to a discussion"78. He said that nothing Mr Butler said convinced them he had a good explanation.

[111] At that interview the other incidents - the urinating in the shower, wiping faeces on people in the shower, the penis in the sandwich and the urinating in the drink bottle were mentioned. Mr Butler's response to the urinating in the shower was to say: "those bastards pissed on me too."79

[112] Mr Butler had become loud, but not aggressive, and had said that they were only trying to get rid of him because he had a bad back and that he was going to get the union. Mr Burgess said that Mr Tunstall's response was:

"...Barry, I advise that you don't. You've got a grievance process that you can go through here first, go and see the general manager first before you go and do that, that's my advice and then you can go off and see a third party later on."80

[113] Mr Tunstall said: "...At no stage during the investigations or interviews did Barry request any sort of representation"81.

[114] Had union representation been asked for, he would have spoken to the general manager, because, he said; "I'm not really sure about where we sit at Henty regarding union representation."82 He said that, had the request been for a friend or another miner, it would have been granted right away.

[115] Mr Tunstall agreed that he had not put the alleged motive for smearing the excrement on the truck to Mr Butler.

[116] According to Mr Tunstall, Mr Butler became abusive and aggressive during the second interview. Things became heated and Mr Butler accused them of trying to get rid of him because he had a bad back.

[117] In answer to a question as to why the letter had been typed up before Mr Butler had an opportunity to respond to the issues of the sandwich and urinating on people, Mr Tunstall said that the incidents referred to in the letter of termination [apart from the steering wheel incident] were not directly relevant to Mr Butler's dismissal. He said:

"The only thing that was directly relevant to Barry's dismissal was the fact that we had proved beyond reasonable doubt that he smeared excrement on the steering wheel of the William's truck."83

Workers' Compensation Claim

[118] Mr Butler's evidence was that he was injured at work on 12 April 2001, resulting in two slipped discs. He had one day off then he returned to work on normal duties, but found that he was unable to continue on air leg duties, and went on to light duties. For about a week he was performing clerical type work, following which he went back underground and worked on rock breaking, with restrictions, with the approval of his doctor.

[119] Mr Butler said that he continued with this for a short while, a matter of weeks, then he saw Dr Hoyle and had MRI scans. Once the MRI scans were made available to the company he never returned to work. He said: "I never got back to work after that."84

[120] On the Thursday prior to his dismissal Mr Butler had seen Dr Hoyle, who told him that he would send a report of the results to the company.

"Dr Hoyle told me I'd be a long-term injury, up to 12 months on light duties and I'd possibly never be going back into that type of environment again. He said, I'll be writing a letter to the company informing them of such. That was on the Thursday, the day I went to see him and from then on, or on the Monday, this other trouble started."85

[121] Mr Butler's belief was that the company was deliberately using the truck incident to get rid of him because of the workers' compensation claim.

[122] He said that he had said to the foreman:

"...don't put me on the shit heap because I knew what they were trying to do. I could sense it, when I got the MRI scan, when I heard the doctor - he told me that I'll be a long term injury, that's when I suspected that with this other, there'd be problems."86

[123] The evidence of Mr Burgess was that the company was trying to create meaningful work for Mr Butler during his rehabilitation period. He said that Mr Bob Casey was responsible for overseeing Mr Butler's rehabilitation program.

[124] In relation to the suggestion that Mr Butler was terminated because he was on workers' compensation, Mr Burgess said:

"That's ridiculous, I mean (a) it's against the law, you can't do it and we had plans for Barry to go onto another crew as a Jumbo operator."87

[125] Mr Burgess was referred to a document entitled Confidential Crew Structure Changes. This was a memorandum prepared by himself and addressed to Mr Andy Tunstall and all shift bosses. It was dated 31 May 2001. It showed Barry Butler as being part of "Crew A" and had a dot point which reads:

"Barry to train, Browny on air leg prior to moving to A crew as a 104 operator".88

[126] He said the document was prepared with Mr Butler's rehabilitation in mind, by returning him to work more quickly and giving him another skill.

[127] Mr Burgess said that he was not aware of the report from Dr Hoyle in relation to the MRI scan. He said: No, I don't see any of those medical reports on people. That's another department."89

[128] Mr Tunstall said that Henty would not do such a thing as terminate Mr Butler because of his workers' compensation claim. It would be totally against the Henty philosophy.

[129] Mr Tunstall was asked, whether at the time he terminated Mr Butler's employment, he had any knowledge of a report relating to the MRI scan and Mr Butler's injury, to which Mr Tunstall replied: No, I didn't".90

[130] Mr Ron Casey, risk management co-ordinator, said that the rehabilitation approach is to get the person back to their original level of health wherever possible with a gradual return to work. He described in some detail the rehabilitation process in the case of Mr Butler. This included accompanying Mr Butler to visit Dr Doyle. Mr Casey said that on one of the trips home Mr Butler had said to him that Henty was trying to get rid of him. Mr Casey said: "...God, where are you getting this from, that's not the case at all."91

[131] Mr Casey said that as a result of discussions between himself, Mr Butler and his doctor, that Mr Butler would go into a training role.

[132] Mr Casey had received a report on the results of the MRI scan. He said that the date he received the report would have been either the day after 31 May 2001 or the following day. He thought it most likely that the results were received on Friday 1 June 2001. This was prior to the dismissal. He said that he did not speak to Mr Tunstall about the "exact results"92 of the scan.

[133] He was asked what he had done with the MRI scan results:

"Basically used that to check the previous plan and to put a new plan in from specific dates indicated from the medical certificate which in this case would have been from 31^st or 1 June to a date in the future...

Did you mention it to anyone else in the management team in Henty?.........Only in the form of, if there were any changes to the actual duties the person could perform."93

[134] Mr Casey said that any changes in restrictions placed on a mining employee resulting in a change to the rehabilitation plan would be discussed with the mine co-ordinator, Mr Dale Burgess. Normally, he would also send a report to the department manager, which, in the case of mining employees, was Mr Andy Tunstall. He would send a report to Mr Burgess with a courtesy copy to Mr Tunstall.

[135] The evidence of Mrs Catherine Bartlett, personnel development co-ordinator, was that she had been the administrator of Mr Butler's workers' compensation claim.

[136] When an employee is incapacitated, she said, the insurance company makes the workers' compensation payments and the company makes up the balance of the pay. When an employee is terminated they continue to receive the workers' compensation payment but they no longer receive the make up pay.

[137] Whilst still employed, Mr Butler had received approximately $80,000 annually. The evidence, according to correspondence between solicitors94, was that Mr Butler's normal weekly earnings were $1,588.46 prior to the dismissal. The same correspondence showed that Mr Butler was receiving $690.57 in weekly workers' compensation payments on 6 June 2001.

SUBMISSIONS

Mr Flanagan for the applicant

[138] In Mr Flanagan's submission there was no valid reason for the termination of Mr Butler's employment. Section 30 of the Act states that an employee who has a reasonable expectation of continuing employment must not have their employment terminated unless there is a valid reason connected with their capacity, performance or conduct or the operational requirements of the employer's business. Subsection (4) specifically states that physical and intellectual disabilities are not valid reasons for termination, nor is temporary absence from work because of illness or injury.

[139] Section 30, subsections (7) and (8) state that the employee must not be terminated for reasons related to conduct, capacity or performance unless they are informed of those reasons and given an opportunity to respond to them. When responding, they must also be offered the opportunity to be assisted by another person of their choice. Whilst there was debate about whether or not Mr Butler had sought to be represented by the union, what was unchallenged was that there was no offer by the company to Mr Butler to seek assistance from another person at the interviews.

[140] Each of these sections is relevant and should be considered by the Commission when considering whether or not to grant reinstatement. A further consideration is whether or not reinstatement is practical. Mr Casey stated that the approach of Henty was to get the [injured] person back to their original level of health. Mr Tunstall had recognised Mr Butler's mining skills and attitude to work, saying that he was a very hard worker. There is no reason why Mr Butler cannot return to his employment in the mine.

[141] The evidence was that the supposed catalyst for the investigation was Jeremy Weller seeing excrement being washed from Mr Williams' hands, but Mr Williams' evidence was that he washed the excrement from his hands, using hand cleaner, immediately after the incident. Mr Weller's evidence was that Mr Williams also complained of having dodged water hoses all night. The company, because it was convenient for them, targeted Mr Butler and pursued one incident, while ignoring the equally serious incident of water hoses being sprayed.

[142] The position of the union is that the substance on the steering wheel was not excrement, but grease, but even if it was excrement, it was not placed there by Barry Butler, who consistently denied that he was responsible. The evidence does not show, firstly, that Mr Butler did it, or secondly, that it was in fact excrement on the steering wheel. The evidence shows that one employee thought that there was excrement on the steering wheel. Mr Butler was of the view that it was grease. The evidence does not establish, as the company asserts, that Mr Butler was the only one who could have been there.

[143] The union's submission was that the company conducted a "spurious and flawed" investigation. They formed an absolute view of Mr Butler's guilt above and beyond the balance of probabilities test. They incorrectly applied their own discipline policy. The company, rather than rely upon the balance of probabilities, formed the view that Mr Butler was not telling the truth. During the interview the company did not put the alleged motive to Mr Butler, yet they relied upon it in forming an absolute view of his guilt.

[144] Mr Flanagan referred to a decision of the Commission, Andrew Frances Woolley The Australian Workers Union and Tassal Limited, where Johnson DP said that it was not open to the employer, in that case, to determine the matter on the basis of truthfulness and untruthfulness:

"in doing so he moved from a balance of probabilities situation, upon which I believe he was entitled to rely, to a situation of absolutes, ie Mitchell, Franklin and Witherington were truthful whereas Woolley and Monks were untruthful."95

[145] The Deputy President said:

"By taking the approach he did, in my opinion, Mr Van Der Ploeg led himself into error. Had he come to his conclusion on a balance of probabilities, rather than on the basis of truth or untruth, that Woolley and Monks were the persons involved..., he was bound to take into account, in determining what to do about their presumed involvement, all the facts and circumstances that were before him"96

[146] In the present case Mr Butler denied responsibility from the outset. The company was not prepared to accept that denial. Mr Tunstall said he did not object vehemently enough. The company say that they do not believe what Mr Butler is saying. They have made an absolute decision as to guilt, as with the Tassal case. This is an act of substantive unfairness against Mr Butler.

[147] Mr Flanagan referred to the company's discipline policy, in particular its stated purpose, which includes giving employees the opportunity to correct unacceptable behaviour. The evidence was, six months before Mr Butler's dismissal, allegations against Mr Butler were made to Mr Clayton, who had failed to pursue them.

[148] There were general sessions with employees about what was or was not acceptable in terms of conduct, but no specific counselling was given.

[149] In terminating Mr Butler's employment the company stated:

"On previous occasions, you committed other acts of indecency such as urinating on people and throwing excrement around in the showers, urinating (or pretending to urinate) in people's drink containers and putting your penis inside the sandwich of a fellow employee."97

[150] The company's policy is very clear. If indecency or horseplay occurred, that was major misconduct, which in the first instance carried a verbal warning, for a second instance a written warning and in the third instance where there is a prior written warning, dismissal. None of that was ever invoked by the company in the matters they refer to in their letter of dismissal.

[151] The evidence showed that the company had inconsistently applied their policy. Mr Tunstall said that no action was taken against Mr Butler previously because the incidents weren't formally reported at the time. What is clear is that Mr Butler was never, ever given any opportunity to correct what Henty viewed as inappropriate behaviour.

[152] Despite the fact that [mining] is an industry of blue collar workers exposed to a difficult and demanding work environment Mr Tunstall continued to hold the line that indecent horseplay might be somebody telling a crude joke and somebody being offended by it. This is an absurdity with no relationship to the nature of the industry. Mr Rory McCann had outlined the role of practical jokes and the ethos of the workplace.

[153] Mr Tunstall described "dangerous horseplay" as being something which was above normal practical joking but below the level of horseplay which would possible lead to injury. This is an interesting assertion because inherent in the word "dangerous" is the proposition that it could lead to injury or illness.

[154] Mr Tunstall said that the discipline policy was intended as guidelines only. That also is an absurdity. It is clear from Clause 2 - Purpose of the policy that the policy is intended to be applied and very specific examples are given so that employees may know exactly where they stand.

[155] Whilst not accepting that Mr Butler was involved in the incident concerned, and not accepting that the substance was excrement, if the company's view is accepted, then it is very clear that the correct application of the policy would be the prescription for indecency or horseplay, or at the most extreme edge, dangerous horseplay. Clearly, the company has not applied the policy to the prejudice of Mr Butler. This constitutes substantive unfairness warranting the reinstatement of Mr Butler.

[156] Mr Flanagan submitted that there had been a lack of procedural fairness. The evidence showed that the company had written the letter of termination following the first interview. This constitutes a pre-judging of the employee. This in itself is substantive unfairness to Mr Butler.

[157] Mr Butler asserted that he sought union representation and was denied it. The company asserted that he did not, but at no stage was he offered the opportunity to obtain representation in accordance with section 30 subsection (8).

[158] Mr Flanagan said that, from the outset, the union had contended that the conduct of the company was designed to avoid its workers' compensation obligations. At the time of the dismissal Mr Butler was working on alternative duties whilst receiving full payment. When an employee is dismissed for misconduct the employee effectively becomes disentitled to any further workers' compensation payments. Authority for this is to be found in Novello v Zinc Corporation Limited98 and Ludowici & Son Ltd v Cutri99. In Novello Mr Flanagan said that the following was said:

"Only where a worker by folly, irresponsibility, or misconduct, deliberately throws away the employment he enjoyed after injury or acts in a way that causes his dismissal therefrom is the salary which such worker is `able to earn' within the meaning of the Workers' Compensation Act his salary in that position even though it no longer be available and not provided."100

[159] What this is saying, according to Mr Flanagan, is that if you are dismissed from employment for misconduct, having returned to your normal employ, then you become disentitled to ongoing workers' compensation payments.

[160] Mrs Bartlett's evidence reinforces the union's assertion that the termination was because of benefits which flow to the company as a consequence of not being required to make certain payments to the employee.

[161] In the union's submission, that was the real motivation behind the company's conduct.

Mr Fitzgerald for the Respondent

[162] Mr Fitzgerald said that the company had put a great deal of resources into this lengthy case. This was significant because it indicated a deliberate change in the way the company does business in terms of managing its people. The company, through its discipline policy, through the attendance of the general manager at the hearing, the attendance of other senior managers, and through its defending the case had indicated that what had happened in the past was not necessarily perfect and that things were going to be done differently at Henty.

[163] The choice is between the evidence as presented by Henty, which was honest and spontaneous evidence, against the evidence of Mr Butler. There is direct conflict between Mr Butler's evidence and the company's evidence. Mr Butler's evidence was unreliable; his body language, his demeanour, his contradictions, his answers [show that] he is totally unreliable and the evidence of the company should be preferred. There was evidence from the company witnesses that Mr Butler had a reputation for these sorts of acts and direct evidence that he also had a reputation for being violent. Mr Butler was not an articulate witness, but that should not cloud the issue of the truthfulness of his evidence.

[164] The only other evidence [the union presented] was that of Mr McCann, which was not relevant evidence, and can simply be dismissed out of hand. Mr McCann had no experience of Henty. He has no knowledge of the policies or culture at the workplace. He is coming from a past era, as is Mr Butler, where it was acceptable to do these sorts of things. The act performed by Mr Butler may have occurred in the industry some years ago, but it is not within the culture of respect for individuals which is evident at Henty [today].

[165] The company has conceded that joint counselling may not have been the most appropriate way [to deal with earlier complaints], and whilst conceding that it does not constitute a formal warning, it was clearly aimed at Mr Butler. During the investigation there were a number [of people] who came forward to indicate that Mr Butler was guilty of other offences. In legal terms that is similar fact evidence. It showed that Mr Butler had a clear propensity to be involved in these sorts of things. This reinforced in the company's mind that Mr Butler was guilty of the offence. Mr Tunstall's evidence was that it was the [steering wheel] incident that was the major ground for the termination, not the other incidents, but the other incidents reinforced and galvanised the company's attitude.

[166] Mr Butler performed an act which was beyond the realms of human decency. It was not just dangerous horseplay. It was something which the reasonable person in the street would respond to as a gross, revolting act. Clearly, it falls into the most serious category which justifies summary dismissal.

[167] The evidence is circumstantial but there are enough supporting events to lead the Commission to conclude that the company was right in assuming that Mr Butler was responsible. The test is not the criminal test of beyond a reasonable doubt, it is the balance of probabilities. Mr Tunstall obviously weighed up all the probabilities and the circumstances. In this case there was very strong circumstantial evidence. The investigation was properly carried out over a two day period. It was not just a cursory investigation, it was a proper investigation process, involving the interviewing of witnesses and the like.

[168] Mr Butler's claim that the reason for termination was workers' compensation was absolute rubbish. There is plenty of evidence to indicate that Mr Butler was being properly managed as part of the rehabilitation process. The evidence was that that neither Mr Tunstall nor Mr Burgess were aware of the MRI scan. That fact was not in Mr Tunstall's contemplation when he terminated Mr Butler's employment.

[169] Mr Fitzgerald submitted that Mr Butler was confused about the witness issue. The fact that the company had not actually offered a witness to Mr Butler is not fatal. This needs to be assessed in terms of the major provision of section 30 - subsection (2):

"In considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account."

[170] The fact that he had no witness does not impact on the issue of being afforded a fair go all round. If it had been an immediate dismissal with no investigation and proper process, then it would have. The fact that there has been a breach of subsection (8) merely means that there has been a breach and there can be enforcement of that breach; it is just one aspect which should be taken into account in the consideration of the overall test in section 30 subsection (2). The fair go all round test is one which has been used by the federal commission. On the evidence, Mr Butler has been given a fair go all round.

[171] In the case of AWU v Temco T564 of 1995, Watling C held that:

"In these matters, it is not the role of the Commission to impose its view over and above that of management unless it can be clearly established by the applicant that the dismissals were harsh, unjust or unreasonable, there was some denial of natural justice or which is commonly knows as denial of procedural fairness or industrial fair play."101

[172] Whilst these are not the words in the current legislation, they are the basis of it, Mr Fitzgerald said.

[173] In the case of Amalgamated Metal Workers v Colgate Palmolive Pty Ltd102 the Commissioner found that in the case of an employee guilty of misconduct for perpetrating a practical joke leading to an employee being injured, the company was within its rights in summarily dismissing the employee.

[174] Briganshaw v Briganshaw103 is authority for the use of circumstantial evidence and clearly indicates that all that is necessary is for the company to show that on the balance of probabilities the act is likely to have occurred.

[175] Mr Fitzgerald referred to the Australian Labour Law Reporter and the question of evidence not available at the time of the dismissal:

"Because the focus of a tribunal's examination of an alleged unfair dismissal is on the fairness or otherwise of the termination in all its aspects and not merely on the employer's actions at the time of the dismissal, events occurring or coming to light after the dismissal may be relevant to the question of whether the dismissal was unfair."104

[176] The cases of Gregory v Philip Morris and Byrne and Frew105 are referred to. Evidence which came to light following the initial allegation can be utilised in the context of the fair go all round test in supporting the principal ground for termination.

[177] In a further case, quoted in the Australian Industrial Law Review, Bi Lo Pty Ltd v Hooper106 the Court found that:

"Where a dismissal is based upon the alleged misconduct of an employee...an employer will satisfy the evidentiary onus cast upon it if it demonstrates that, insofar was within its power before dismissal, it conducted as full and extensive an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and make a response; and that the employer then honestly and genuinely believed and had reasonable grounds for believing on the information available at the time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal. A failure to satisfactorily establish any of these matters was said by the full Commission to probably render the dismissal harsh, unjust or unreasonable"107

[178] In Mr Fitzgerald's submission, what this case is saying is that, if, after conducting the investigations, the employer honestly and genuinely believed they had reasonable grounds, that is all that is required.

[179] Mr Fitzgerald said that the Commission should not order reinstatement or re-employment, given the admissions on transcript by Mr Butler of involvement in a number of acts which are offensive to human decency. Mr Butler, by his admission, had shown conduct completely at odds with the philosophy of Henty. There has been an irretrievable breakdown in the employment relationship. There are obviously a number of employees who felt that Mr Butler's conduct in the shower was inappropriate. There would be some fear of recrimination if Mr Butler was allowed to return to the workplace. The very nature of the allegation makes it inappropriate that other employees should have to work with Mr Butler.

FINDINGS

[180] It is clear from the evidence that Mr Butler had a history of playing "jokes" on his workmates that could be described as offensive and distasteful. It is also clear from the evidence of a number of witnesses that practical jokes, including jokes of this nature, have historically been part of the mining culture. Mr Butler has had 32 years as an underground miner. I accept Mr McCann's description of underground mining as (paraphrased) a dirty, hard, dangerous environment in which indecent jokes and horseplay have been endemic. No doubt, practical jokes, including offensive practical jokes, have been a part of Mr Butler's 32 years work in the mining industry.

[181] I also accept that the company genuinely wanted to change this culture. This is evident from their discipline policy, and the training sessions they conducted.

[182] Unfortunately, the actual practice, in this case, fell far short of the words expressed in the policy. The evidence showed that a complaint about Mr Butler's behaviour had been made to the shift boss, Les Clayton, yet nothing was done about it. Mr Clayton's evidence was that the same or a similar incident had been brought to the attention of the underground mine co-ordinator, Dale Burgess. Mr Butler had reported faeces on "the mesh on me job" to his shift boss, but nothing was done about it. No action was taken in relation to Nathan William's [unofficial] report of "dodging water hoses all night."

[183] Mr Butler had attended one session on the discipline policy and had been part of either one or two (the evidence differs) crew meetings at which horseplay and noise were mentioned. On the evidence before me I have concluded that Mr Butler received nothing that could be considered to be either individual counselling or warnings, despite his behaviour having been brought to the attention of his supervisors. The discipline policy was not invoked. It is not possible to know whether, had this happened, Mr Butler would have changed his ways. He should have been given that opportunity. Indeed, the policy states as one of its purposes that the procedure for dealing with employees should include warnings allowing them the opportunity to understand the consequences of their behaviour. It states that initial intervention should provide the opportunity for positive direction and instruction. Mr Butler was denied this opportunity. When Mr Butler's behaviour was finally brought to his attention he was dismissed, rather than warned.

[184] I do not accept the views expressed by Mr Tunstall and Mr Burgess that the offence for which he was dismissed - placing excrement on the steering wheel of a fellow employee - was outside of the categories of offence warranting a warning according to their policy. It clearly falls either within the major misconduct category of "indecency or horseplay" or the serious misconduct category of "dangerous horseplay". In the hierarchy of offences in the policy, both of these categories carry warnings for first offences, and dismissal where previous warnings are on record. Such was not the case with Mr Butler. No previous warnings were on record. In the letter of dismissal, Mr Butler was informed that he was dismissed for "Serious Misconduct", a category for which, according to the policy, he should have been issued with a warning. According to the policy, only "Very Serious Misconduct" carries the penalty of dismissal without a warning.

[185] Despite what Mr Tunstall and Mr Burgess had to say about the policy being "guidelines only", in my view Mr Butler, having attended a session in relation to the discipline policy, was entitled to rely upon the policy as expressed being applied. The policy states: "This list [of offences] is not intended to be exhaustive but rather illustrative of the seriousness of the offences in this category". In my opinion these words cannot be taken to mean that offences clearly listed in a category can be moved into other categories based on "managerial discretion". The policy also talks of its purpose being to provide a consistent framework.

[186] I find that Mr Butler was not afforded treatment consistent with the company's discipline policy. That was unfair to Mr Butler. After a proper investigation, were Mr Butler to have been found to have been the person responsible, based on reasonable grounds, then he should have been given a warning, possibly a first and final warning under the category of "serious misconduct" as outlined in the Discipline Policy.

[187] The company did conclude that Mr Butler was the person responsible, but the question is, was the employer's belief held on reasonable grounds after sufficient enquiry? The tests are set out above in Bi Lo v Hooper.

[188] The evidence reveals a number of inconsistencies regarding the investigation conducted by the company. Firstly, the catalyst was the comment of Nathan Williams to the effect that someone had placed excrement on the steering wheel of his truck. This comment was made to Mr Jeremy Weller. When he made it Mr Williams was washing his hands at the end of the shift. The evidence was that he had washed the substance off his hands much earlier in the night. Mr Weller reported to Mr Burgess that Mr Williams had told him that "one of theWilliams guys had smeared shit on his steering wheel"108. The evidence of Mr Tunstall was that Mr Burgess had come to him and told him that Jeremy Weller had seen Nathan Williams washing human excrement from his hands and that it had been placed there by Barry Butler.

[189] It is difficult to know how Jeremy Weller's comment to Mr Burgess was able to be represented to Mr Tunstall in such a manner by Mr Burgess before the investigation had commenced. Mr Tunstall's evidence was that he then instructed Mr Burgess to conduct an investigation.

[190] Mr Tunstall's evidence was that the initial part of the investigation was conducted on Friday 1 June 2001. He said that Mr Burgess had spoken to Les Clayton to account for the whereabouts of the people on the shift, and that had revealed that the only people who could have done it were Barry Butler or Nathan Williams himself.

[191] Mr Burgess' evidence was that he had spoken to Mr Clayton prior to Mr Butler being stood down (which was on Monday 4 June 2001). He said that he had "several conversations" with Mr Clayton and established that it was Mr Butler through a process of elimination. He also said that, during the first stage of the investigation "we" spoke to each and every one of the 13 people underground and established their whereabouts. He later said that he did not speak to the people individually but only to their supervisor, Les Clayton. The following Monday the people were spoken to, but not about their whereabouts on the night in question. Mr Burgess was very clear in stating that he had relied principally upon Mr Clayton for the evidence as to where the people were in the mine at the time.

[192] Admitted into evidence was a report on the incident, in the form of a memo from Mr Burgess to Mr Tunstall. This is dated 31 May 2001, the day before the investigation allegedly took place, although there was some lack of clarity in Mr Tunstall's evidence as to when certain events took place, namely, the first stage of the investigation and a meeting of shift bosses. The evidence of Mr Burgess was that the shift boss meeting was on the Friday (1 June 2001).

[193] The memo contains a lot of precise detail as to where people were located and the timing of events which took place underground at the time of the incident. It says "Les Clayton verifies this story." The report implicitly concludes that Barry Butler was responsible for placing excrement on the steering wheel, cites a previous incident involving Mr Butler and recommends that it should be dealt with in the strictest manner possible.

[194] The shift boss, Mr Clayton, was a witness for the company and an employee of the company. He presented as a credible witness. He certainly had nothing to gain from presenting the evidence that he did. His evidence was that he had no knowledge of the steering wheel incident until he returned to work some five days later, which was after the dismissal of Mr Butler. He was informed of the sacking by another employee and after that he was questioned by Mr Burgess as to the events underground on the night of the incident.

[195] Mr Clayton's evidence directly contradicts that of Mr Burgess. Mr Burgess said that on Friday 1 June 2001 he spoke to Les Clayton "and asked him what he knew about the incident".109 He said that he subsequently interviewed Mr Clayton again as part of the initial investigation and that he had two or three conversations with Mr Clayton. Yet Mr Clayton said that the first he knew of the incident was after the dismissal.

[196] The evidence of Mr Burgess differed from that of a number of other witnesses. His evidence was also internally inconsistent. Firstly he claimed that he had spoken individually with the underground miners as part of the initial interview, later he changed that to having spoken only to their supervisors. His initial evidence was that during the second stage of the investigation the miners were again interviewed as to their whereabouts on the night of the incident. Subsequently this was changed to them only being spoken to about the other incidents.

[197] I found Mr Nathan Williams to be a credible witness. Mr Williams' evidence was that he did not know of any investigations conducted by the company, apart from knowing that he was to have an interview with Mr Fitzgerald, presumably in relation to his evidence before this Commission. He said that he had told his supervisor, Mr Dale Bryant that he did not know who had done it.

[198] The evidence of Mr Tunstall and Mr Burgess refers to at least two discussions with Mr Williams. Mr Tunstall said that Mr Burgess interviewed Mr Williams when he came on shift on 7am [on Friday 1 June 2001]. Mr Williams evidence however was that he was on night shift until either 30 or 31 May 2001 and then had five days off.

[199] Mr Burgess told the Commission that Nathan Williams had named Barry Butler as the person who put the faeces on the truck. Yet Mr Williams in his evidence said that Mr Butler had said that it wasn't him and he believed him at that point. He said that his reaction to Mr Butler's dismissal was that he was "a bit shocked. I thought the old saying goes innocent until proved guilty."110 Mr Williams said very clearly in his evidence "I don't know who done it."111 This is inconsistent with Mr Burgess' evidence that Mr Williams told him, during the initial stage of the investigation, that Mr Butler was responsible.

[200] During the hearing, when final submissions were being put, the Commission raised with the parties the inconsistencies between the evidence of Mr Tunstall and Mr Burgess and that of Mr Clayton in relation to the investigation. Mr Fitzgerald took instructions and informed the Commission that discussions had taken place when Mr Clayton had been recalled to work to attend the shift boss meeting. This was his involvement in the investigation process, but, he said, Mr Burgess had the major carriage of the investigation, which was done while Mr Clayton was absent. Mr Fitzgerald said that Mr Clayton went on in his evidence to show that he was involved in the investigation process on 31 May 2001, which was the day of the shift boss meeting. I have closely examined Mr Clayton's evidence and there is no such evidence as described by Mr Fitzgerald. I have therefore relied upon the evidence as given by Mr Clayton at the time of the hearing. Mr Burgess' evidence was that Mr Clayton was "fairly cloudy" [at the shift boss meeting] and that he "interviewed Les later on down the track as part of the initial investigation into the whereabouts of people at the time of the incident so that we could get a picture of where people were at the time."112 Mr Fitzgerald's instructions are at variance with Mr Burgess' evidence. Mr Burgess' and Mr Tunstalls' evidence is at variance with Mr Clayton's evidence.

[201] Mr Fitzgerald's explanation does not satisfy me as to how Mr Tunstall was able to state to the Commission that the investigation was conducted by Les Clayton and Dale Burgess. Mr Tunstall said that he was satisfied that the investigation had been conducted properly: "because the people who conducted it, Les Clayton and Dale Burgess are both very thorough individuals."113 It does not explain the statements made to the Commission by Mr Burgess that he had "two or three" conversations with Mr Clayton, before the dismissal, about where people were at the time. It does not explain his evidence in which he said that "we", later clarified to mean Mr Clayton, spoke to each and every one" of the 13 people underground about their whereabouts as part of the initial investigation. It certainly does not explain Mr Clayton's evidence that he knew nothing about the incident until after Mr Butler was dismissed. It does not explain the report which sets out all of this information in some detail and which is dated 31 May 2001, five days before Mr Clayton knew about the incident.

[202] I find it inconceivable that Mr Clayton could have had the detailed role in the investigation as claimed for him by Mr Tunstall and Mr Burgess, and yet have no knowledge at all of the allegation of faeces on the steering wheel until after Mr Butler's dismissal. Yet his evidence was clear and believable on this point.

[203] It is clear that the explanation, as put forward by Mr Fitzgerald, that Mr Clayton's involvement had taken place during a shift boss meeting, goes nowhere near explaining how an off duty crew could have been individually questioned by Mr Clayton at that time.

[204] There are two possible explanations: one, that the investigation described to the Commission as having taken place prior to the dismissal in fact took place after the dismissal and before the hearing; or, two, that Mr Clayton completely and inexplicably forgot his involvement in a detailed investigation into an incident, which involved interviewing at least 13 people. I think that only the first scenario fits the evidence.

[205] Whilst I accept the submissions of Mr Fitzgerald that facts that come to light after a dismissal may be relied upon to support that dismissal, this is a completely different matter to evidence which comes to light later being represented as having formed the basis of the decision to dismiss. An employer has an obligation to investigate the facts before the dismissal. An inadequate investigation may lead to a conclusion that the dismissal was unfair, even if the facts do support that conclusion based upon a later investigation.

[206] The test, as set out in Bi Lo v Hooper, that an employer will satisfy the evidentiary onus cast upon it if it demonstrates that before the dismissal it conducted as full and extensive an investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances, has not been met. This was unfair to Mr Butler.

[207] The union submitted that the company had pre-judged Mr Butler, and there appears to be some justification for such an assertion. Mr Burgess reported to Mr Tunstall, according to Mr Tunstall's evidence, that, before any investigation had taken place, Mr Burgess had said to him that Nathan Williams had been washing human excrement off his hands and that Barry Butler had placed it on the truck. Mr Tunstall's evidence was that he had had pre-prepared the letter of termination before Mr Butler had an opportunity to put his case at the second interview.

[208] Mr Flanagan submitted that the company had formed an "absolute view" of Mr Butler's guilt, rather than considering the balance of probabilities, and, as such, they fell into error. He cited the case of Andrew Francis Woolley and The Australian Workers Union and Tassal Limited in support of that proposition. In the present case I find that the company formed a view of what was the truth, in advance of conducting the investigation.

[209] The company's own evidence shows that the second phase of the investigation was focussed on other aspects of Mr Butler's past behaviour, and not the truck incident. Mr Burgess' evidence, under cross-examination, was that, when speaking to the employees underground: "we investigated in person on the other issues but we didn't speak to them about their whereabouts on that particular shift."114 Mr Tunstall's evidence was that a number of other incidents came to light during the 24 hour stand-down period. Mr Tunstall said that he went underground and spoke to Mr Pat Le Mercier and other events were revealed.

[210] The second phase of the investigation seems not to have been centred upon its alleged purpose - to investigate further following Mr Butler's protestations of innocence - but instead appears to have the characteristics of a "fishing expedition" designed to unearth previous behaviour of Mr Butler which could be used to reinforce or to justify a decision already made.

[211] On balance, taking into account all of the circumstances I find that the company decided very early in the piece, certainly before the first interview, perhaps as early as at the time of the receipt of the report from Mr Weller, that Mr Butler was guilty. The evidence was that Mr Burgess relayed this report to Mr Tunstall in terms of Barry Butler having done it. In forming a view of guilt in advance of sufficient enquiry being made, the company fell far short of the objectivity that could reasonably be expected of it. On the basis of the pre-prepared letter and the evidence of Mr Burgess and Mr Tunstall's discussions prior to the second interview I find that they made a firm decision no later than before the second interview that they would dismiss him. This they did, without putting to him the alleged "motive", discovered during the second phase of the investigation and upon which they relied.

[212] The company's evidence was that Mr Butler was dismissed only for the steering wheel incident, and not for other incidents which came to light during the second stage of the investigation. However, Mr Tunstall listed each of those offences in the letter of dismissal which then went on to say "In view of the above, you are hereby dismissed..."115 Mr Fitzgerald said that, whilst those incidents were not the reason for the dismissal, they assisted the company in arriving at its conclusion that Mr Butler was responsible, because they indicated that he had a propensity for indulging in such behaviour. Although Mr Butler admitted to the previous incidents, they had occurred a considerable time ago, and he was not counselled or disciplined in relation to them, even though his supervisor was aware of at least one of them. In these circumstances I believe those incidents should not have been taken into account when the company formed the intention to dismiss Mr Butler. In the case of previous incidents known to Mr Butler's supervisors, I think it unfair that where an employer has elected not to exercise the right to discipline an employee in relation to an offence, they later rely upon it to justify dismissal.

[213] Mr Butler claimed to have requested the presence of a witness at the first interview, and the presence of the union at the second. Mr Tunstall and Mr Burgess testified that Mr Butler had not, at any stage, asked for representation. Mr Butler said that he rang the union office during the 24 hour suspension period and spoke to Mr Flanagan who advised him to ask for union representation. On the basis of a number of inconsistencies in the evidence given by Mr Butler, Mr Tunstall and Mr Burgess, I have concluded that none of them are completely reliable witnesses. I think, on the balance of probabilities, that Mr Butler would have requested the union's presence at the second interview. He knew that he was in trouble. He was a union member. It is unlikely that a union member would not contact the union in such circumstances.

[214] Section 30 (7) of the Act states that an employee must not be terminated for reasons related to conduct unless informed of the reasons and given the opportunity to respond to them, and subsection (8) states that an employee, responding under subsection (7) "is to be offered the opportunity to be assisted by another person of the employee's choice." I find that Mr Butler was offered no opportunity to be assisted by a person of his choice.

[215] Mr Fitzgerald submitted that this is not fatal to the employer, when considered in the context of a fair go all round, particularly as, he said, there had been a proper process and a proper investigation. I have already found that there was not a proper investigation. In my view, section 30 (2) which Mr Fitzgerald described as encapsulating the "fair go all round" test should not be read to mean that other parts of section 30 need not be complied with. Whilst the failure to offer the opportunity to be assisted may not be fatal, it cannot be ignored. The Parliament has decided that this opportunity should be provided for in the legislation. The failure on the part of the employer to provide that opportunity is no light matter, and was unfair to Mr Butler.

[216] The union contended that the real reason behind the dismissal was the fact that Mr Butler had made a workers' compensation claim. Mr Tunstall and Mr Burgess claimed not to be aware, at the time of the dismissal, of a report from Mr Butler's doctor in which the results of a recent MRI scan were referred to, and which would have indicated a deterioration in Mr Butler's condition and a long term problem. The evidence of another company witness, Mr Casey, was that it was his practice to discuss such information with Mr Burgess if the person involved was a miner, then send a note to Mr Burgess with a courtesy copy to Mr Tunstall. His evidence was that he received the report on either 31 May or 1 June 2001, some days before Mr Butler's dismissal on Tuesday 5 June 2001. Given that changes to a rehabilitation program would need to be implemented quickly, for example, to avoid exacerbating an injury to a worker, I think it likely that Mr Casey would have acted quickly upon the report from Dr Doyle. Mr Casey said that the new plan would have been put into effect from 31 May or 1 June. Therefore, it is probable that Mr Burgess and Mr Tunstall were aware of the existence of this report when they dismissed Mr Butler.

[217] There is insufficient evidence for me to conclude that the workers' compensation claim alone was the real reason for the dismissal. The timing of the dismissal is, however, a coincidence of such a nature as to give legitimate rise to such a question being asked. I think it likely that, had the workers' compensation claim not been made, or had the MRI results been more favourable, then Mr Butler might have just been given a warning, as is outlined in the company's Discipline Policy.

[218] For the reasons set out above I find the dismissal to have been unfair.

[219] On the detailed and extensive evidence of Mr Butler, Mr Williams and Mr Clayton which was before the Commission (but much of which was not before the company at the time of the dismissal), I have concluded that, on the balance of probabilities, Mr Butler did commit the offence for which he was dismissed.

[220] Mr Butler's behaviour was offensive and reprehensible. I note that "indecent horseplay" is located on the third tier down in the company's hierarchy of offences, and "dangerous horseplay" on the second tier down. I have taken this into account when deciding the appropriate remedy. It may be that the company should reconsider where these offences sit if they are serious about changing the workplace culture. Nothing in this decision should be taken as indicating any tolerance for such misbehaviour in the workplace

Remedy

[221] Having found that Mr Butler, despite his denials, did place excrement on the steering wheel of the truck, I now address the question of what effect his failure to reveal the truth should have with regard to remedy. I have concluded that he should not be deprived of a remedy, which would otherwise have been available to him, for that reason alone. Other penalties exist, which are outside of my jurisdiction, for deliberate falsehood on oath. I note that, in this case, Mr Butler is not the only witness whose evidence has been found to be unreliable.

Section 30(2) of the Act states:

"in considering an application in respect of termination of employment, the Commission must ensure that fair consideration is accorded to both the employer and employee concerned and that all of the circumstances of the case are fully taken into account".

[222] Having found that the dismissal was unfair, and in deciding what is an appropriate remedy I have considered the fact that the actions of Mr Butler were unacceptable, and had been so over a period of time. In deciding upon an appropriate remedy I have taken all of the circumstances into account and weighed the gravity of the offence against the substantial procedural unfairness.

[223] Section 31(1B) says that if a Commissioner, finds that an employee or a former employee has been unfairly dismissed, the Commissioner may-

"...if he or she believe it be appropriate order reinstatement or re-employment..."

[224] Section 30 (9) says that:

"The principal remedy in a dispute in which the Commission finds that an employee's employment has been unfairly terminated is an order for reinstatement of the employee to the job he or she held immediately before the termination of employment or, if the Commission is of the opinion that it is appropriate in all the circumstances of the case, an order for re-employment of the employee to that job."

[225] Neither side is blameless. Mr Butler has suffered a significant penalty, he has been without employment for some time. Had the company acted according to their policy, he would have been given a warning, possibly a first and final warning. He may or may not have re-offended. He may or may not still have been employed. In considering the interests of both sides I have decided that re-employment is the appropriate remedy, rather than reinstatement. In all of the circumstances of this case, I consider this remedy to be fair to both parties. This does not impose a financial penalty upon the company by way of making up lost wages, but gives Mr Butler another chance.

[226] Mr Fitzgerald submitted that re-employment was impractical because Mr Butler had admitted to conduct which was completely at odds with the philosophy of the company. I have already made reference to the fact that the conduct of which Mr Butler was guilty was not conduct which was classified in the company's policy as warranting summary dismissal.

[227] Mr Fitzgerald said that there had been an irretrievable breakdown in the relationship which would make re-employment inappropriate, but did not advance any evidence or reasons for the assertion that the relationship had broken down and could not be retrieved.

[228] Mr Fitzgerald submitted that Mr Butler had a reputation for violence; he said there was direct evidence of that. He said that there would be some fear of recrimination from employees who thought Mr Butler's conduct in the showers was inappropriate. I reject this on the basis that there is no such direct evidence. Mr Burgess posited a reputation as a tough man as a possible reason for people not reporting previous incidents involving Mr Butler. He said that Nathan Williams "may have" been a little bit scared of some form of retribution by people. Mr Tunstall said that people were reluctant to give evidence against Mr Butler because they were "a little bit scared of him."116 Nathan Williams, however, said that, had he made a report, he had no concerns regarding any violent acts. The only direct evidence in relation to an alleged fear of retribution on the part of Mr Butler's fellow-workers does not support it. Therefore I do not see this assertion as any impediment to re-employment.

[229] The evidence was that Mr Butler was a flexible and experienced employee. Management witnesses spoke highly of his skills and work ethic. No submissions were put to me that Mr Butler would be unable to continue to be employed as a result of his workplace injury. The evidence was that the company has a sophisticated return to work policy, geared toward rehabilitating injured workers, and, even if not fully fit, Mr Butler was seen as being able to play an effective role in training other personnel. Witnesses for the company claimed that they would not have dismissed Mr Butler for reasons related to his injury. Mention was also made of plans to train Mr Butler to be a Jumbo operator.

I do not consider re-employment to be impracticable.

ORDER

I hereby Order, pursuant to s.31 of the Industrial Relations Act 1984, in settlement of the dispute referred to in matter T9601 of 2001, that Goldfields Ltd, Henty Goldmine, Howards Road, Queenstown, Tasmania 7467, re-employ Mr Barry Roland Butler, of 40 McNamara St, Queenstown, Tasmania, on or before 4 April 2002 on terms and conditions of employment no less favourable than those which applied to his employment immediately prior to 4 June 2001.

P C Shelley
COMMISSIONER

Appearances:
R Flanagan of The Australian Workers' Union, Tasmania Branch
W Fitzgerald of Australian Mines and Metals Association (Incorporated) for Goldfields Limited

Date and place of hearing:
2001
July 3
Queenstown
August 20, 21, 22
Queenstown
October 24
Queenstown
November 28
Hobart
December 10
Hobart

1 Exhibit No. R3
2 Exhibit A1
3 Transcript P18
4 Transcript P44
5 Transcript P46
6 Transcript P53
7 Transcript P80
8 Transcript P96
9 Transcript PP 102-103
10 Transcript P110
11 Transcript P111
12 Transcript P140
13 Transcript P192
14 Transcript P186
15 Transcript P188
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17 Transcript P194
18 Transcript P197
19 Transcript P197
20 Transcript P18
21 Transcript P56
22 Transcript P77
23 Transcript P78
24 Transcript P121
25 Transcript P127
26 Transcript P129
27 Transcript P151
28 Transcript P162
29 Transcript P162
30 Transcript P120
31 Exhibit No. A2
32 Transcript P152
33 Transcript P152
34 Transcript P153
35 Transcript P206
36 Transcript P207
37 Transcript P211
38 Transcript P189
39 Transcript P179
40 Transcript P184
41 Transcript P250
42 Transcript P252
43 Transcript P199
44 Transcript P237
45 Transcript P140
46 Transcript P143
47 Transcript P146
48 Transcript P142
49 Transcript P 155
50 Transcript P172
51 Transcript P141
52 Transcript P142
53 Transcript PP145-146
54 Transcript P155
55 Transcript P156
56 Transcript P173
57 Transcript P173
58 Transcript P203
59 Transcript P203
60 Transcript P209
61 Transcript P210
62 Transcript P118-9
63 Transcript P191
64 Transcript P192
65 Transcript P184-5
66 Transcript P185
67 Transcript P186
68 Transcript P185
69 Transcript P38
70 Transcript P12
71 Transcript P12
72 Transcript P14
73 Transcript P15
74 Transcript P52
75 Transcript P53
76 Transcript P145
77 Transcript P148
78 Transcript P148
79 Transcript P149
80 Transcript P149
81 Transcript P228
82 Transcript P238
83 Transcript P213
84 Transcript P11
85 Transcript P95
86 Transcript P28
87 Transcript P150
88 Exhibit R1
89 Transcript P150
90 Transcript P211
91 Transcript P263
92 Transcript P268
93 Transcript P268
94 Exhibit A6
95 Exhibit A3 P26
96 Exhibit A3 P27
97 Exhibit A1
98 Novello v Zinc Corporation Ltd (1988) NSWLR
99 J C Ludowici & Son Ltd v Cutrie (1992) 26 NSWLR 580
100 Transcript PP309-310
101 AWU v Temco T564 of 1995
102 Amalgamated Metal Workers v Colgate Palmolive Pty Ltd C No. 1861 of 1976, AILR
103 Briganshaw v Briganshaw (1938) 60 CLR 336
104 Australian Labour Law Reporter, P35,251, 1998 CCH Australia Ltd
105 Australian Labour Law Reporter, P35,251, 1998 CCH Australia Ltd
106 Australian Industrial Law Review, 283 Vol 34 No 18, 1992 CCH Australia Limited
107 Australian Industrial Law Review, 283 Vol 34 No 18 1992 CCH Australia Limited
108 Transcript P252
109 Transcript P140
110 Transcript P185
111 Transcript P187
112 Transcript P140
113 Transcript P237
114 Transcript P155
115 Exhibit A1
116 Transcript P204