C2014/6727, Transcript of Proceedings [2015] FWCTrans 29 (23 January 2015)

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PN1.

THE SENIOR DEPUTY PRESIDENT: We will take appearances, please.

PN2.

MS S ZEITZ: May it please the Full Bench, I seek permission to appear on behalf of the appellant, and appearing with me is MS RAYNER as instructing solicitor. I understand the Full Bench has already received copies of the parties' applications for permission - - -

PN3.

THE SENIOR DEPUTY PRESIDENT: Yes, you don’t need to address us further in relation to that. Yes.

PN4.

MR R REITANO: It please the Commission, my name's Reitano and I seek permission to appear for Mr Fuller and Mr Cannan.

PN5.

THE SENIOR DEPUTY PRESIDENT: Yes, very well. We have received written submissions in relation to permission, and we're satisfied that this case is of sufficient complexity to support the grant of permission to counsel, so permission is granted. We have received also submissions on the appeal proper by the appellant, which we will mark exhibit A1,

EXHIBIT #A1 OUTLINE OF SUBMISSION BY APPELLANT

PN6.

THE SENIOR DEPUTY PRESIDENT: An outline of submissions on behalf of Mr Cannan and Mr Fuller we will mark exhibit R1.

EXHIBIT #R1 OUTLINE OF SUBMISSION ON BEHALF OF MR FULLER AND MR CANNAN

PN7.

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Zeitz.

PN8.

MS ZEITZ: Thank you, your Honour. Can I indicate that I advised your associate that we would provide the recording disk at the proceedings this morning, and I do have copies of that for each member of the Full Bench and for my friend.

PN9.

THE SENIOR DEPUTY PRESIDENT: Yes. That forms part of the appeal book.

PN10.

MS ZEITZ: As indicated in the communication, we don’t intend to refer to that recording. To the extent that it is referenced in the proceedings, it is exhibit A8, which I think is page 1195 of the materials.

PN11.

THE SENIOR DEPUTY PRESIDENT: Very well.

PN12.

MR REITANO: I wonder if before my friend proceeds, I could correct something in the appeal book. Without consulting us, I think correspondence went to the Full Bench about things that needed to be added to the appeal book that had been omitted. One of those items was said to be submissions that were handed up on the last day of hearing to Wells DP. We understand that the document that was provided to the Full Bench, and which was provided to us, was not in fact what was handed up to Wells DP but, rather, was our submissions in this appeal.

PN13.

I wonder if I could hand up and ask the Full Bench to dispense with the document that they have that is at page AB2713, and replace it with the document that I am about to provide, which is a copy of the written submissions that were handed to Wells DP on the last day of hearing.

PN14.

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. Yes, you would have needed to be very perceptive to hand up a submission to Wells DP which referred to the decision.

PN15.

MR REITANO: Could I indicate, I do intend to refer to that document in the course of my address in the appeal.

PN16.

THE SENIOR DEPUTY PRESIDENT: Yes. You have no issue with that, Ms Zeitz?

PN17.

MS ZEITZ: Having provided it, your Honour, I did actually locate it in our appeal book; it actually appears at page 1200 and forms part of the substantive appeal books. Of volume 2. There are two sets of submissions, one is the outlines of submissions which were handed up at 1224, and then there is the document to which Mr Reitano has just taken you, dated 3 July 2014, which commences at page 1200. So my concern about making sure the Full Bench had everything was, as it turned out, misplaced, in fact it was already in the appeal book.

PN18.

THE SENIOR DEPUTY PRESIDENT: Yes. We can dispense with the document Mr Reitano has provided us entirely; it's already in the appeal book at page 1200. Very well, thank you.

PN19.

MS ZEITZ: Your Honours, I propose to simply work my way through the outline of submissions and elaborate on certain matters that have been addressed, and then to address the submissions filed on behalf of the respondents to the appeal. Can I indicate at the outset that the Full Bench will have noted that in fact two decisions were issued by Wells DP. One appears at page 21, and it was accompanied by - of appeal book 1 - and it was accompanied by directions, which appear at page 73. That decision was provided to the parties in the early afternoon of 19 September, and a couple of hours later a further decision, or a new decision, was issued which the parties were advised was a corrected decision. That is found at page 74 of volume 1, with directions at page 126.

PN20.

The changes to her Honour's decision - sorry, the Deputy President's decision - I've been picked up on that a few times, so I'll try and correct it - were primarily found at paragraphs 281 and following. The Deputy President, in the first decision, had concluded that re-employment was appropriate, on terms and conditions no less favourable than those held at the time of dismissal. She changed that to reinstatement to another position, on terms and conditions which they are employed immediately before the dismissals took effect, for practical purposes.

PN21.

She in the first decision indicated it was appropriate to apply a penalty to each applicant and that re-employment would not entail work in D-panel casting. Her subsequent decision was simply that continuity of employment would be maintained. She then asked the parties to provide written submissions as to the assessment of lost pay, and then gave a decision to that effect, which is the document that was forwarded as part of the other material forwarded more lately, which is a decision at page 127(a) to (e). In that decision she determined to apply a discount to the back pay, and at page 127(f) her order appears.

PN22.

Your Honours, this was a matter that commenced in, as by way of hearing, in June of last year, the hearing concluded in July of last year. It occupied some eight days of hearing, which by any measure in this Commission is unusual - blessedly unusual for most parties, I would suspect. It involved some 20 witnesses, including Mr Fuller and Mr Cannan. So there was an extensive amount of material. The Full Bench would be aware from the volumes of the appeal book how much written material was also provided.

PN23.

The history of the matter derived from - and I will just go to this briefly - a complaint that was made by Messrs Cannan and Fuller, amongst others, alleging that they had been subjected to bully behaviour by their then team leader, Mr Fraraccio, and asserting what was called a vote of no confidence in him from the team.

PN24.

That matter was investigated and it was found to be unsubstantiated. What arose from the investigation process was a concern that there were other issues occurring in relation to that particular work group that required further investigation. The employees involved, and there were six at the time, were stood down on pay. That was on I think 13 August of 2013, that process was then the subject of a dispute notification by the CFMEU on behalf of the six employees involved to this Commission.

PN25.

Arising from that process it was agreed - the process that came out of that were two things, (1) that the employees who had been stood down on pay were able to return to the workplace if they chose to do so, although not to their substantive positions, and it was made clear that was voluntary. None of the employees involved in that in fact elected to return to the workplace. Secondly, it was agreed that former Commissioner Simmonds would be engaged, he was the nominee of the CFMEU, and it was agreed that he would be engaged by Nyrstar to undertake an investigation process into concerns that had arisen.

PN26.

I could indicate that running behind that process, and the Commission will be aware if you have had the opportunity to consider the material, a Mr David Farmer had, prior to the engagement of Mr Simmonds, undertaken or conducted a number of interviews with employees. They become referred to, in effect, as the 12 statements in the Deputy President's decision. That process was ongoing through June, July and August - I think even ran into early September, from memory - by Mr Farmer, and then Mr Simmonds took over, or conducted his own separate process consistent with the agreed outcome from the Commission's dispute notification and hearing.

PN27.

I provide that background, because what becomes immediately apparent that, as is the course with many of these matters, once an investigation process starts, it can become messy and complex and take unexpected turns. Given the number of people that were involved at that time, that certainly was an issue that arose.

PN28.

The matter before the Deputy President proceeded on the basis that of the six employees who were involved in the process, three were subject to procedures that did not include termination of employment, one of the employees who was terminated didn't proceed with an application - or proceed with an application that was filed, I should say - and the other two, Mr Cannan and Mr Fuller, elected to proceed. So effectively of the six employees that were involved in the investigation process, three remained in employment and three did not.

PN29.

So her Honour was asked to consider the application of the two individuals in the context of all of that history, and that is one of the reasons why so much material was provided, because it was necessary to provide that context in order for that to be understood. I won't go into further detail in relation to the background, unless any of the members of the Full Bench have any particular questions at this point. I'll work through the decision and there may be some matters that arise from that.

PN30.

I don’t understand it to be contested that the appellant is a person aggrieved by the decision, so I don’t propose to address that. Insofar as public interest is concerned, it would be my submission that it is self-evident from the decision itself and the principles that we rely on for the purposes of advancing the appeal, that the public interest that is applicable to unfair dismissals is well and truly met on this occasion.

PN31.

We accept that there is a positive obligation on the Commission under section 400(1) to be satisfied that it is in the public interest to - for permission to appeal to be granted from a decision, and we say that, and submit, that that has been met here. In particular, we rely upon the decision of Cole v Allied, and I have set that out at paragraph 3 of our submissions, where we say if the Judge acts upon a wrong principle, or if he, or she, allows extraneous or irrelevant matters to guide or affect him if he make mistakes of the facts, he does not take into account some material consideration, then the determination should be reviewed.

PN32.

We say that there are a number of errors that enliven public interest in this matter. Public interest has been defined, and this is in the GlaxoSmithKline case which I have also referenced, as importing a discretionary value judgment to be made by reference to the factual matters and confined to the objects of the legislation.

PN33.

In this case we say that, firstly, the Deputy President made a finding that this was a case of summary dismissal. That's at paragraph 268. In her decision she said that in considering whether there was - this is in relation to a conclusion as to the merits - she concluded there was a valid reason for their dismissal by reason of misconduct. She then references Mr Fuller's disciplinary history as not being without incident, although identified an historical incident rather than a recent one. She identified length of service, ages at the time of dismissal, family dependent responsibilities, a denial of procedural fairness, findings of condonation and lack of managing the behaviour and says, "Given those matters, I am satisfied the conduct did not justify summary dismissal."

PN34.

It was never put to the Deputy President that it was, in fact, summary dismissal, and it was not, in fact, summary dismissal. The employees concerned were - their employment was suspended on 13 August 2013, and some 16 weeks later they were invited to show cause. When they were advised of the termination of their employment, they were paid in lieu of notice.

PN35.

We say it is a substantial error that the Deputy President has entered into, and one that does enliven the public interest, because it does raise, and I'll come to this in more detail later, the extent to which the Deputy President applied the test of balance of probabilities, or whether she applied Briginshaw, whether she actually placed the burden of proof on the appellant, or whether she left the burden of proof where it belonged - in this case with the respondents.

PN36.

She doesn't identify that anywhere in her decision. The only place she refers to the evidentiary test is where she refers to "on balance". But she at no point - and I'll take the Commission to it later - at no point does she identify on the balance of what. We say that too is a fundamental error in determining what facts are or are not to be accepted, and whether or not the applications have been made out to the appropriate standard of proof. It is clear, in our submission, that it was central to her conclusion, because when she came to award quantum, at page 16 of her decision as to quantum, she included no provision for the payment of notice, or payment in lieu of notice. It's clear that her assumption was that no notice had been paid.

PN37.

I just note in that regard that the parties were invited to put submission as to quantum, and did, and the parties were in, I think it would be fair to say, vigorous disagreement about what the appropriate quantum was, put aside the extent to which there should have been a discount. Despite that, the Deputy President did not come back to the parties and say, "I need to hear further from you because I have issues around the quantum because the parties are in such vigorous disagreement as to the amount, could you please explain." We say that of itself was also a denial of natural justice, because it resulted in clear error on the record.

PN38.

At paragraph 252 of her decision, the Deputy President refers to her role - no, it doesn't. I'll come back to that, I've mis-transcribed the reference. Says something about the hour of the day that I was writing it - so paragraph 225. She says:

PN39.

In considering whether there is a valid reason for dismissal, based on the misconduct of an employee, the Commission must firstly determine for itself, on balance, that the conduct occurred and then determine whether or not that misconduct constituted a valid reason for dismissal.

PN40.

As I have already indicated, she does not elucidate in that paragraph the test that she is applying to the evidence, or indeed, where she considered that any burden of proof may lie.

PN41.

The third matter in the public interest which we say is enlivened is that in considering whether or not reinstatement was an appropriate order, having found that there was a valid reason for termination, the Deputy President does not appear to have considered the impact of returning persons, who she had found had engaged in bullying conduct, to the workplace. It's not mentioned anywhere in her decision, other than where she references the fact that she thinks they can go back because they will change their behaviour - and I will address that later in the submissions.

PN42.

It is a clear, in our submission, matter of public interest that given the now firmly legislatively entrenched jurisdiction of this Commission in dealing with bullying behaviour, as established by the amendments to the legislation which came into effect at the beginning of last year, that how that is to be balanced, those considerations are to be balanced when considering the operation of the jurisdiction dealing with harsh, unjust and unreasonable termination of employment is a significant factor. We say it's a matter that is in the public interest. Bullying behaviour is by its nature messy because it impacts personal relationships in the workplace. We say that that was not given any consideration by the Deputy President.

PN43.

In coming to the decision, the decision itself is lengthy. The first 220 paragraphs of the decision are devoted to a recitation of the evidence and the positions of the parties. Twenty people gave evidence, there was considerable material. Our complaint and our submission of error is that 13 paragraphs only are devoted to an assessment and findings. They are found at pages 37 to 39 of her decision.

PN44.

At paragraph 226 the Deputy President commences an examination about was there a valid reason. In considering the matters relating to Mr Fuller she identifies three matters in three paragraphs, considering the matters relating to Mr Cannan, four paragraphs, and she then makes a finding of historic behaviour, paragraphs 237 to 239.

PN45.

The Deputy President conducted no analysis of the evidence, and in our submission, that is a fundamental flaw and error. Of the 16 witnesses for the employer, called on behalf of the appellant, in no case does she assess whether she believes any part, sum, none of their evidence. A reading of the decision suggests that she has accepted in its entirety the evidence of the applicants, and where there has been no contest between the parties, she has accepted that evidence. The material that relates to paragraphs 237 to 239, being the historical behaviour, was largely uncontested. Those witnesses who gave evidence about the impact of behaviour on them historically were not substantially cross-examined in relation to the impact - how that behaviour impacted them.

PN46.

What the Deputy President did not do is assess - that is apparent from the decision - is assess the evidence of Mr Fraraccio, who was the team leader charged with managing these employees at the time that the investigation process started. The only finding she made was the somewhat remarkable finding that his contemporaneous file notes, which she accepted were prepared for a proper purpose, i.e. for the purposes of coaching, nevertheless, did not carry any weight or substance in relation to his evidence. We say that of itself is also an error of law.

PN47.

What the Deputy President appears to have concluded is that all the behaviour identified by the appellant's witnesses in relation to matters that related to industrial disputes was industrial conduct, and it appears that her conclusion was, although she doesn't articulate this particularly clearly, that if the conduct was engaged in for industrial purposes and for advancing industrial interests, then it wasn't capable of being misconduct or bullying behaviour. This is particularly in the case of Mr Fuller, at paragraph 231 of the decision.

PN48.

On the evidence before me, much of which was provided by Nyrstar's own witnesses, I am satisfied that the raising of workplace disputes by Mr Fuller was in his capacity as union delegate and were raised over concerns that were genuinely held. To the extent that Mr Simmonds found the raising of disputes to amount to a misconduct or bullying, he provided no reasons for this in his report, and I am of the view his findings were in error.

PN49.

She says:

PN50.

While it may be that D-panel raise more disputes than other panels in casting that in itself does not denote misconduct and was done in accordance with the dispute settlement procedures contained in the EBA.

PN51.

The very matter for which she criticises Mr Simmonds, i.e. he provided no reasons for this in his report, is the same issue that the appellant has with that finding, no reasons provided for her conclusion. There was plenty of evidence from witnesses for the appellant that no one had ever suggested that they could not raise issues, the concern was the way in which issues were being raised.

PN52.

She conducted no analysis that is apparent from her decision of the evidence regarding Mr Fuller's behaviour. She provided no reason for her conclusion that Mr Simmonds was in error. There is no indication that she considered the evidence, and if she did, it's not apparent from the decision. The appellant's concern is that we don’t know how she came to that conclusion because we don’t know what evidence she accepted and what evidence was rejected. We surmise that she has rejected all of the evidence of the appellant's witnesses. With respect to her, that simply can't be substantiated because that witness evidence was not substantially challenged in cross-examination.

PN53.

Mr Fraraccio, and this is at paragraph 4410, it's page 587 of the appeal book, said:

PN54.

I don’t believe I ever suppressed their issue raising. I believe, and I always have been of the opinion, that the guys should feel that they can raise an issue, so long as it is in a constructive way, and that is some of the discussion that I've had with those people over the year, over the last 12 months.

PN55.

At 4452:

PN56.

Everyone is entitled to their opinion, and I just - I guess I want people to just raise those concerns in a constructive way. I shouldn't have to be intimidated or threatened or embarrassed, anxious about coming to work.

PN57.

Another witness, Mr King, said at 715 of PN 5902:

PN58.

What I had a problem with was how they spoke to the team leader, or the people that were in leadership roles, not the fact that they raised issues. There's nothing wrong with raising issues.

PN59.

If that evidence was considered, it's not clear, and if it was rejected, it's not clear the basis upon which it was rejected.

PN60.

It appears that it was rejected from her decision simply because when she does make a finding about bullying behaviour she refers to it being "largely historic". Mr Fraraccio wasn't historic, he was their current leader. So we can only surmise that his evidence has been rejected. As I said, we don’t know why.

PN61.

It appears, with respect to the Deputy President, that she relied upon the submission of the applicants - or the respondents, sorry - that - and this is at paragraph 168 of her decision - "All of the evidence presented by Nyrstar failed to acknowledge the representative role Mr Fuller and Mr Cannan played within the workplace." Apart from the fact that we would cavil with that, that appears to be what has been uplifted by the Deputy President and applied. But if she has accepted that, as I said, she has not established the basis upon which she did so. In our submission, that is a manifest error.

PN62.

There is no basis for finding that a person engaged in a representative role is also entitled to pursue that representative role and engage in bullying behaviour, harassing behaviour or intimidating behaviour without fear of or concern that there is a consequence that attaches to their employment. We rely on this - I have referred to this at 4.2, on the two High Court decisions. I acknowledge that the second one wasn't handed down until after this decision came down, but it reinforced and confirmed the decision in Barclay's case, to which I have referred.

PN63.

In those decisions the High Court has made quite clear, albeit talking about adverse action, that where an employee is engaging in behaviour in a way that attracts the attention of the employer for proper purposes, such as disciplinary, misconduct or something of that nature, there is no statutory bar there, it is not an adverse action to then take action with respect to that behaviour or that action. It is entirely appropriate because it is not, in the case of an adverse action, for improper purpose. We say that is something that is important and it is a statement of principle that should be clear, and certainly one, in our submission, that attracts the public interest in this case.

PN64.

It has not ever been disputed, and in the vast amount of material there is nowhere in the material where any respondent - sorry, any witness for the appellant suggested that raising the issues was inappropriate. What they criticised was the frequency, the manner, the behaviour the attitude of the group, in particular, and the conduct of both Mr Cannan and Mr Fuller, particularly in what's called the pass meetings. I think they're referred to in the decision, the pass meetings are the pre-start meetings at the commencement of each shift.

PN65.

The evidence of the appellant's witnesses was that Mr Fuller's behaviour caused people to feel intimidated. It's the evidence of Mr Fraraccio at paragraphs 4547 to 4550, Mr Terry at paragraph 5915 and in exhibit R10, Mr King, who referenced them being disrespectful, at paragraph 5927, and in his written statement submitted, referred to them as disrespectful, abrasive, hostile and belittling. Mr Seward at 6203 referred to them going to war about issues. That was the evidence that was before the Deputy President, not constructive, cooperative, or even robust, but nevertheless, respectful discussion. These were people who were prepared to consistently engage in behaviour that was described by others, and experienced by others, in the terms I've just described.

PN66.

We say it can't be suggested that the applicants - that Mr Fuller and Mr Cannan were not aware of the proper standards of behaviour required. They had undergone training, that wasn't contested, they had themselves complained about Mr Fraraccio, and suggested that when he raised issues, more frequently than they thought was appropriate, that was them being bullied as a group. That was their complaint. So they were certainly alive, from their own perspective, to the nature of the behaviour that would attract a label of bullying behaviour. The Deputy President, with respect to her, addresses none of that in her decision.

PN67.

The difficulty that the decision attracts, in our submission, is that the findings that she has made do not address the evidence and she makes no findings about what evidence was accepted, what she has rejected, and why she has rejected it. The findings are insufficient because the parties can't determine how she has come to the conclusion she has come to from the decision. She refers to the majority of allegations at paragraph 278 as being old, but she doesn't say which allegations and she doesn't say which contemporary ones she rejected. She appears to have referenced specific instances, and then at every opportunity the evidence of the appellant's witnesses is rejected in favour of the respondent's.

PN68.

So insofar as the Barclay decision is concerned, we say that the Deputy President has entered into error, and it's a fundamental error that enlivens the public interest because she has failed to properly consider whether the action and activity of engaging in industrial - the pursuit of industrial issues was capable of - nevertheless attracted the characteristics of bullying behaviour. She appears to have concluded, as best one can tell, that it was incapable of doing so because it was industrial issues being raised. That, in our submission, is simply wrong.

PN69.

Also telling, in our submission, was that both Mr Cannan and Mr Fuller indicated that they had never treated Mr Fraraccio any differently to the way they had treated other team leaders in the past. On the logic of her Honour's finding, if the behaviour was bullying behaviour in the past, then it was bullying behaviour in the future - in the present, simply based on that admission, certainly by Mr Cannan, at paragraph 926. At 956 he says there was nothing in his behaviour towards Fraraccio that was unusual.

PN70.

She says that, "Following a consideration of each of the matters" - this is at paragraph 268 in section 387:

PN71.

I have concluded that there was a valid reason for the applicant's dismissals by reason of misconduct.

PN72.

Again, with respect to her, it's not to conclude - the question was whether there was a valid reason for dismissal. That's section 387(a). Other matters then flow from that. But she has found that based on the historical behaviour, she has not addressed the current behaviour, and she moves on from that to then work through the other aspects of section 387.

PN73.

What she doesn't identify anywhere in the 13 paragraphs was how she assessed what was bullying behaviour and how she rejected bullying behaviour. The difficulty with that is, from the appellant's viewpoint, is if it is accepted that the current and concurrent behaviour of Mr Fuller and Mr Cannan was to engage in bullying behaviour and it had not only been - had historical weight but had been continuing up until the time they were - about the time they were suspended, in our submission, that was a significant factor that weighed the question which she ultimately answered in the affirmative regarding reinstatement. That's why we complain about the reasoning process.

PN74.

At paragraph 232 of her decision, the Deputy President found that:

PN75.

Different incidents of behaviour engaged in by Mr Fuller towards management employees could be said to be bullying as they were one-off incidents and did not amount to repeated behaviour against those individuals. In our submission, that's a clear error on the law.

PN76.

We do not understand that the Commission would, or should, adopt a definition of workplace bullying which is inconsistent with its own legislative provisions. Section 789FD defines workplace bullying as:

PN77.

A worker being bullied at work if an individual or group of individuals -

PN78.

we say that that was what was put to her Honour -

PN79.

repeatedly behaves unreasonably towards the worker or a group of workers, of which the worker is a member.

PN80.

That is the definition in the Act, and clearly, in our submission, the Deputy President did not address that at all. What was the evidence before her was that anyone, a team leader or other person in a management position, they were the people who gave evidence, they were the class, the group, that complained of the bullying behaviour. So what she has found is that a complaint - actions against one team leader on one day and an acting team leader a week later, and a relieving team leader could not be capable of being bullying behaviour. We say that's simply wrong in the law.

PN81.

If the conduct of the individuals is to consistently engage in behaviour towards a group of employees, in this case team leaders in particular, in our submission, that squarely met the definition under section 789FD. If there was to be a consideration of that, then her Honour needed to address why, in her view, it didn't meet that hurdle, and she didn't.

PN82.

Her Honour also concluded on paragraph 5.3 of the submissions that there had been condonation of the behaviour, and that's in her decision at paragraphs 263 and 267. At 283 she concludes that:

PN83.

Nyrstar management had full knowledge of the conduct of the applicants, but despite this, they not only retained the applicants' services, they did nothing about the conduct, and accordingly, Nyrstar had deliberately given up the right to dismiss.

PN84.

It is a remarkable conclusion, and in our submission, no evidence whatsoever to support it.

PN85.

Firstly, in our submission, she failed to take into account or consider the accounts of individual employees, who were the people who were (a) experiencing the bullying behaviour, and (b) who were charged with the responsibility of sending it up the line if they thought it was serious. It is clear most of them, with the exception of Mr Fraraccio, who then became the subject of a bullying allegation and a no confidence motion, indicated that they hadn't taken formal disciplinary proceedings. That was absolutely accepted across - by the parties, and we don’t resile from that.

PN86.

What they said though was that they did attempt to coach - and I've set this out at paragraph 7 and following of our submissions. Mr Fraraccio said he regularly and consistently provided feedback to each of the respondents regarding their work performance. I have there put in the references. That included discussions with Mr Fuller that he needed to change the way he behaved or he didn't have a future with the company. Her Honour doesn't appear to have given that any weight.

PN87.

That he said:

PN88.

When you're dealing with it on a daily basis, I guess you become immune to it. It's not until you're taken out of the environment until you realise how bad it actually was.

PN89.

Mr Reitano's response was, "I'm not concerned about your level of immunity." We're talking about bullying behaviour.

PN90.

His evidence was he felt Cannan was unreasonable and intimidating by his conduct on a daily basis. He didn't report it because he believed it would not be a surprise to his managers. So here we have the most recent team leader attempting to address the issues and giving clear evidence that he felt bullied and intimidated by those two individuals, and her Honour does not address this evidence at all.

PN91.

The evidence of Mr Hines was that he had spoken with the respondents and he had given Mr Fuller some informal coaching. Mr Fuller had got, his words, "Right in his face on a number of occasions," and that's, again, referenced. At 7.4, the evidence of Mr Seabourne was that the respondent's behaviour adversely affected his health, and he said he believed his role was to manage the situation and not refer it. These are classic responses to bullying behaviour, classic responses to bullying behaviour. His view, that the past meetings were structured to push the meeting in a certain direction, and that's at appeal book 639.

PN92.

Mr Seabourne, his evidence was - and this was information that came out only during the interview process that Mr Farmer undertook, and it is probably reasonable to suggest that this was what - this was the information that focused the appellant's attention on the seriousness of what had apparently been occurring. Mr Seabourne's evidence was that he attempted suicide, because of the behaviour of D-panel, including Mr Cannan and Mr Fuller. I will come to what they say about their remorse and contrition later.

PN93.

That first came to the attention of the employer as a result of the statement that he gave to Mr Farmer. They didn't know about it before that because he thought he should be able to deal with it.

PN94.

The evidence of Mr King - sorry, of Mr Schultz, was that they would try and keep things on the floor if they could; they tried to sort issues out themselves. These are people who are team leaders who are trying to manage a situation as best they can when they are being confronted with the sort of behaviour that leads people to become anxious and despairing and concerned.

PN95.

Her Honour has acknowledged that that behaviour happened, because that appears to be what she bases her findings on, that the behaviour was historic. It was certainly, in our submission, significant. Mr Hinds' evidence - in reference to Mr Seabourne's evidence, that's page 2427 of the appeal books.

PN96.

COMMISSIONER: Sorry, what was that?

PN97.

MS ZEITZ: Mr Seabourne, page 2427 of the appeal books.

PN98.

Mr Schultz's evidence, and this is found at page 2480, and this was the statement from the statement he gave to Mr Farmer, where he referred to being on the panel from late 2011 until late 2012 as the team leader. At paragraphs 27 and follows he said he became - he started to worry about what issues would be voiced next, he became short tempered at home, that was not like him, his wife and children noticed it, he had to seek assistance through EAP, he was told he was depressed, he hated going to work, he says at 30:

PN99.

I would not be prepared to remain if they returned, as I would worry that their constant negativity would bring me down again. Individually I found them pleasant to talk to, but in a group environment their demeanour and behaviour was damaging to me.

PN100.

These are significant issues of occupational health and safety that became evident during the investigation process. All of this was information that was not disclosed to more senior management, and that's the evidence of Mr Wells, he said, "If there were issues I expected the team leaders to deal with it, and if it got more serious it came to me." Mr Rainbird said this. They were the more senior management.

PN101.

No one suggested that the panel was not notorious for being a handful and for being difficult, but it was viewed in the same context that her Honour appeared to view it, which was it was all about industrial disputation. What no one realised, and this was the evidence of Ms Newton, was the extent to which the behaviour was actually impacting individuals. They gave that evidence. The Deputy President appears not to have given it any weight in her consideration or of the issues that then arose with respect to reinstatement.

PN102.

None of that suggests condonation, that she found. Mr Moore's evidence was that, "It was like a constant grind of small things, like, you know, death by a thousand paper cuts-type situation." That's at appeal book page 726. His experience of Mr Fuller was that he was constantly negative. If he attempted to provide feedback he was shot down, that's at the appeal book at 729. At paragraph 6092 he says:

PN103.

It was never enough of an issue to have something formal done, it was just little things all the time that actually brought you down so much.

PN104.

These people describe behaviour that is extremely difficult to manage, and they describe the impact of that behaviour on them, and the Deputy President, with due respect to her, appears to have concluded that people that are referred to as "I get on well with them on a personal basis", the team leaders were struggling to manage, but attempting to manage very difficult management situations and it was coming at a cost. That was continuing right up to Mr Fraraccio, who was observed by others to becoming increasing - I'll take you to the evidence later - observed to also be starting to struggle with trying to manage this team, and in particular Mr Fuller and Mr Cannan.

PN105.

Mr Seward said that the baggage that came with Mr Fuller was hard to deal with, that's at page 742. He described the pre-start meetings as difficult and hostile, and that at times it was like going to war. That's at page 747 of the appeal book and 753.

PN106.

All of that evidence was before her Honour, in particular the evidence of Alexandra Williams, who is a safety advisor, who gave evidence that she attended meetings at which Mr Fraraccio was present and she was astonished at the degree of - of the behaviour. She found it to be - the demeanour of Mr Cannan and Mr Fuller as negative, and that's at appeal book 738, and the transcript - this is at PN 6145, in answer to a question from Mr Reitano:

PN107.

To the extent that you said in your statement that there was negativity, you're referring to the fact that they disagreed with what Mr Fraraccio was putting?‑‑‑I wasn't referring that they were disagreeing, I was referring more to their demeanour.

PN108.

She then says:

PN109.

Their demeanour was one that was always quite - if for example Josh had said something, they would challenge him on it and it seemed that they were never happy with anything, and it was just the folding the arms, rolling the eyes, those kind of - what do you call it, those kind of actions made me feel that they were - they were negative and they were just never happy. To me it felt that they were just everything was wrong and without going their own way.

PN110.

In her written statement she refers to feeling uncomfortable in that situation. That was evidence of attendance at pre-start meetings at the beginning of 2013, that the Deputy President, apparently, disregarded, because there is no suggestion from her findings that she even considered or gave weight to Ms Williams' evidence regarding her experience and the extent to which it corroborated Mr Fraraccio's experience. There has been no assessment of that by the Deputy President.

PN111.

The difficulty - and we don't understate this, but the difficulty in addressing issues of bullying that involve personal relationships in the workplace, particularly where those relationships are involved between manager and employee, is a complex one, we don't resile from that. But the Deputy President appears not to have considered that the effect of her findings was to reject the accounts of the victims in all of this. The team leaders were the victims.

PN112.

If the Deputy President didn't think that you could have bullying up, she didn't say that, but that appears from what her decision was. What she has found is, well, you copped it and you did nothing about it, so therefore, you've, in her words, deliberately given up the right to dismiss. I might note that there in 253 she again refers to dismissed summarily, which, again, wasn't the case.

PN113.

In our submission, what she hasn't done is properly and appropriately consider the role of findings with respect to bullying behaviour and how that impacts all of her findings that the behaviour was condoned. In our submission, victims of bullying struggle, as these people clearly did, to raise the issue in any formal sense. They shouldn't be blamed for that. They all said, we didn't - we tried to keep it on the floor, they were little things, it was a war, it was a death of a thousand paper cuts. That was the evidence. In my submission, the effect of the finding of the Deputy President was that there was condonation of some sort was to effectively punish.

PN114.

She relies quite strongly in her decision on the assertion that the behaviour has been condoned. What is not apparent from her decision is what evidence she has relied upon for that. I've taken you to the evidence of the people who were the victims of it, the evidence of Ms Newton - and I'll find the reference - was that they became aware of how serious it was and that was one of the - how serious the potential issue was, and that was the reason for the investigation process commencing as it did.

PN115.

What is not clear from the evidence is that the company had a real handle on what was going on in D-panel. People had suspicions, they had views, it was a panel that had been - and this is clear from the evidence - notorious for 20 years. None of that amounts to condonation.

PN116.

THE SENIOR DEPUTY PRESIDENT: But it's not simply condonation, it's toleration of condonation, is it, not to go to the B, C and D decision.

PN117.

MS ZEITZ: Yes. The - - -

PN118.

THE SENIOR DEPUTY PRESIDENT: Condonation is an issue, amongst others, to be considered.

PN119.

MS ZEITZ: Yes.

PN120.

THE SENIOR DEPUTY PRESIDENT: Simply the principle that an employee - it's a relevant consideration that certain conduct has not been subject to action in the past by an employer.

PN121.

MS ZEITZ: Yes.

PN122.

THE SENIOR DEPUTY PRESIDENT: An employee has no reason to think that it is wrong or that it threatens their employment. That's all the condonation issue provides.

PN123.

MS ZEITZ: Yes. I suppose in response to that what I say are two things, (1) when dealing with bullying conduct that has actually caused people harm, the extent to which condonation as a factor, in our submission, is not the same as the situation which was in B, C and D, where there was absolutely no evidence of harm, or even indeed offence, to anybody. B, C and D was quite clearly a case of a breach of a policy, it wasn't suggested it was a breach of a law, which obviously bullying conduct is a breach of occ health and safety law for a start, and is also a breach of the - it's a recognised action under the Fair Work Act.

PN124.

B, C and D was talking about policy breach, which is a very different threshold, in our submission, for consideration about issues of condonation and the factors that would go to that. Secondly, in B, C and D, the Full Bench took into account, and placed considerable weight upon the fact, that the individuals concerned, yes, they had lengthy service, yes, there had been some element of toleration - I think there was even evidence that some of the managers had participated - but that was in circumstances where the Full Bench recognised that the ill that was identified was (1) breach of policy and (2) the potential to cause offence, if that had gone wider. That was the crux of the B, C and D decision.

PN125.

This is quite a different case. This is a case where employees who assert that they know what bullying behaviour is, because they've complained about it with respect to Mr Fraraccio, had engaged in exactly the behaviour about which they have complained - - -

PN126.

THE SENIOR DEPUTY PRESIDENT: Rolling of eyes and things of that nature? It will go to a full examination of the transcript and the evidence, but I'm not sure the excerpts that the provided, certainly in themselves, are demonstrative of bullying.

PN127.

MS ZEITZ: The behaviour complained of by the individuals was - and I'll take your Honour to the specific behaviours.

PN128.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN129.

MS ZEITZ: I think Mr Hines in his evidence that - the behaviours complained of were the behaviours predominantly of these individuals in the what are called the pass meetings. Her Honour identified some additional matters that were raised, and they were part of the Mr Simmonds investigation, which were specific instances relevant to particular individuals, and I'll come to those. The behaviour complained of was the constant raising of issues, in a way that was described as derogatory, disrespectful, confrontational, aggressive. We're not talking subtle bullying here, we're simply talking behaviour in a meeting where people felt - Mr Fraraccio's words - intimidated, by the behaviour. I think he described - when you've got someone like Mr Cannan sitting there staring at you and making you feel uncomfortable about trying to raise a matter - "staring into your eyes" I think was the phrase he used.

PN130.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN131.

MS ZEITZ: These are the behaviours that were intended to intimidate. This is where the reference to things like "death of a thousand paper cuts". The problem with this sort of bullying, and it's, for want of a better term, really good bullying, is that it's little things, push - you know, I've got to - I won't go into the German Shepherd analogy, but it's the push, push, push. The little point, always just on and on, the relentless. And that's what it was consistently described in the evidence, and that's what, in my submission, comes through from the transcript of the witnesses who gave evidence, and also from the statements that they gave.

PN132.

This is behaviour that was directed to ensuring that by whatever means - and I say this in the broadest possible sense - fair means or foul, changes that were being sought to be introduced or cooperative outcomes that were being sought never occurred. The effect of that behaviour - this is what I'll say, it was industrial - it was industrial issues - the effect of the way in which that was done was that it was experienced quite clearly, and consistently, by successive team leaders as bullying behaviour.

PN133.

The hostility that was consistently described is what Mr Seabourne gave evidence about, Mr Schultz gave evidence about, Mr Hines gave evidence about, Mr Fraraccio gave evidence about. If it was an industrial campaign, it was a good one, because it worked. In our submission, it is capable of being regarded as bullying behaviour.

PN134.

The appellant accepts that in all of this a more discerning eye may have picked up the behaviour, the extent and seriousness of the consequences of the behaviour, at an earlier stage. It's one thing to know that a group of employees, of which Mr Fuller and Mr Cannan were designated as spokespeople and/or leaders, were engaging in the behaviour and were a challenging group. I don’t think it was a matter in dispute that there were a number of disputes notified and Mr Reeves, who is the organiser, was actively engaged with that group. That cloaked the underlying behaviour. In my submission, that was the error into which the Deputy President fell, because she looked at the behaviour and said, “This was industrial behaviour, this was an industrial issue. I don’t think that can be bullying behaviour.”

PN135.

THE SENIOR DEPUTY PRESIDENT: I’m not sure she expressly stated that. You seemed to have inferred it. I mean, Barclay stands for nothing more than because behaviour is undertaken in the context of industrial representation, doesn’t preclude it from being bullying. That’s really what that stands for. The issue is whether objectively, as distinct from subjectively, certain behaviours are properly characterised as bullying behaviour. That’s an area fraught with some judgment and arises constantly with alleged bullying on both sides. It really comes down to whether there’s been some objective error in identifying the behaviour and whether the issue was, as you described before, one of struggling to manage as distinct from bullying.

PN136.

MS ZEITZ: The issue that the appellant has is that at paragraph 231 where she says, “Well, this was industrial – this was raising a workplace issue in his capacity as a delegate over concerns were genuinely held.” She doesn’t then address at all the behaviour complained of by these witnesses for the appellant and determine at any point whether she accepts the evidence, and, if she accepts it, whether she considers it met a threshold of bullying behaviour, misconduct or breach of policy; and if so, what the consequences were.

PN137.

THE SENIOR DEPUTY PRESIDENT: So your issue is that the Deputy President erred by not considering and reaching findings as to whether the behaviour constituted bullying.

PN138.

MS ZEITZ: Yes, other than in relation to the historic material, which was largely accepted by – or was uncontested. It wasn’t substantially challenged at first instance. Because she finds that although she couldn’t reconcile all of the evidence, it was the unchallenged evidence – this is at 238 – of the Nyrstar witnesses as to how they felt working on D-panel and some of the historic specific behaviours that led her to conclude that there had been bullying behaviour.

PN139.

Now, from that, we extrapolate out and say, “Well, the behaviour didn’t change.” That was the evidence of Mr Cannan and Mr Fuller. They didn’t treat these new people any differently to the way they treated the old people. I refer to that in terms of time, not age. So that was their evidence. The evidence of Mr Fraraccio was, “Well, that’s how I felt.”

PN140.

THE SENIOR DEPUTY PRESIDENT: Well, that’s whether objectively he’s right in feeling that way.

PN141.

MS ZEITZ: Yes, I accept it’s an objective test.

PN142.

THE SENIOR DEPUTY PRESIDENT: Obviously objectively the applicants weren’t subjecting people to paper cuts, even though that’s how someone felt.

PN143.

MS ZEITZ: Yes. The issue though becomes when you have – if you’ve got one team leader who says that, maybe two, three – when you’ve got three, four, five team leaders, several of whom describe significant consequences for their personal health and wellbeing – now, I accept that there is a dispute about the extent of the behaviour and that was a matter that her Honour, in our submission, should have considered. But if the behaviour is accepted as described by these individuals – hostile, aggressive, negative, consistently harassing, my word, behaviour – then, in my submission, the bullying threshold is achieved.

PN144.

Irrespective of whether it’s achieved, her Honour was required to consider that, in my submission, and she didn’t; and if she did, that’s not disclosed in the reasons.

PN145.

THE COMMISSIONER: What do you make of the fact that, in the end, the Deputy President came to the view that there was a valid reason for the termination of both men, notwithstanding what you have to say about the finding in respect of bullying? I’m interested in finding your view, I suppose, about that ultimate finding, that there was a valid reason.

PN146.

MS ZEITZ: The difficulty we have with the finding is that because she’s related purely to the – she finds there’s a valid reason for dismissal. But she then – and it’s not clear from the decision; I absolutely accept that. But it appears that because she seems to have decided it was historic behaviour, that it seems to be appropriate to reinstate these people back into the workplace.

PN147.

THE COMMISSIONER: But that’s a separate complaint, isn’t it, on your part?

PN148.

MS ZEITZ: Yes.

PN149.

THE COMMISSIONER: I’m interested in sort of understanding, notwithstanding what you have to say about the findings about bullying, is it not the case that the Deputy President got to the view that there was a valid reason for termination? Now, what led to that finding, in your view?

PN150.

MS ZEITZ: I think what led to that finding is that she concluded or she appears to have concluded that the behaviour was long term and historic. She appears to have accepted that, certainly with respect to that, bullying conduct had occurred and therefore that there was a valid reason for termination of employment. She, in part, appears to have accepted – well, no, she does it, she accepts that Mr Fuller had breached the code of conduct and didn’t accept other evidence with respect to Mr Cannan. So really, when you’re looking at what she concluded was the valid reason for termination, it is found in paragraphs 237 to 239.

PN151.

THE COMMISSIONER: So you distinguish the findings in respect of historic behaviour from what you call the more recent behaviour.

PN152.

MS ZEITZ: Yes.

PN153.

THE COMMISSIONER: Your complaint is in respect of not making findings about the more recent behaviour under Mr Fraraccio.

PN154.

MS ZEITZ: There’s two particular findings that we take issue with and they flow from the failure to address the evidence, if you like, as I’ve described. One relates to her finding in her decision that – or apparent finding – there had been condonation of the conduct by Nyrstar, there had been a lack of managing the behaviour, and I’ll come separately to the issue of denial of procedural fairness. So she has found there’s a valid reason for termination but then asserts well, the behaviour was condoned. That’s why I’ve taken the Full Bench to the issues well, it’s not quite as it appears and we say that’s a finding in error to the extent she’s found it. If she has found it was condonation, she’s not actually gone to the particular evidence upon which she draws that conclusion, certainly not in any detail. Similarly, the lack of managing the behaviour.

PN155.

In a sense we say it’s either one or the other; you’re either not managing the behaviour or you’re condoning the behaviour. She seems to have regarded them as separate heads or separate grounds when in fact they are really subsets of the same thing; either the behaviour is condoned, which may have as a subset that it’s not being managed, which would be self-evident, or it’s not being particularly well-managed, but perhaps also not condoned. So we say the error is in her not taking, I suppose, a structured and, it would have been in this case, tedious approach of going through all of the evidence and forming an assessment in relation to each element upon which her findings and conclusions are going to be drawn.

PN156.

THE COMMISSIONER: However, a positive finding that there has been recent bullying, if I can put it that way, that does not make any more the finding that there’s been a valid reason for dismissal, does it?

PN157.

MS ZEITZ: No. But we do say that it does then impact the question the extent to which there’s been condonation, because clearly in relation to the most recent stuff the company has acted. So that of course impacts and qualifies that. Ditto the lack of managing the behaviour. Clearly the company now says, “Now that we see the whole ugly picture, we’ve taken steps.” So we say it is relevant to the consideration of whether or not the actions now taken should have in some way affected her ultimate decision about whether or not there was or should have been a reinstatement.

PN158.

That probably conveniently brings me to the issue of procedural fairness. Well, there are two issues. Firstly was the finding about the file notes kept by Mr Fraraccio. Paragraph 228, she found that file notes kept by Mr Fraraccio were kept for coaching purposes. She agreed that he had no obligation to disclose them. But she concluded that:

PN159.

For the purposes of relying upon them as evidence of wrongdoing, I place them no higher than Mr Fraraccio’s oral evidence due to their uncorroborated nature.

PN160.

Now, we say that was a manifest error. It’s not that the notes - - -

PN161.

THE SENIOR DEPUTY PRESIDENT: Sorry, which paragraph is it?

PN162.

MS ZEITZ: 228, your Honour.

PN163.

THE SENIOR DEPUTY PRESIDENT: I should indicate to the parties that the Bench is slightly inconvenienced by some background noise. You should keep your voices up. Yes.

PN164.

MS ZEITZ: Now, we don’t say, nor do we suggest, that contemporaneous file notes stand on their own two feet divorced from all other evidence. They are, however, regularly relied upon in this tribunal and every other tribunal in the land as corroborating sworn testimony where they are contemporaneous concurrent notes made. Her Honour, in our submission, completely mischaracterised the test, firstly. Secondly, she appears to have then concluded, although it’s not clear from her evidence, that she’s placed them no higher than Mr Fraraccio’s oral evidence, which appears to from her finding not be corroborated. I’m not quite sure what that means.

PN165.

She then goes on to find in every respect that Mr Fraraccio’s evidence differs from Mr Fuller and Mr Cannan, that Mr Cannan and Mr Fuller’s evidence is apparently preferred, although that’s not articulated and nor is it stated how she has come to that conclusion or why she has to come to that conclusion. So we say, firstly, that contemporaneous file notes, which she accepted were made for a proper purpose, were capable of corroborating Mr Fraraccio’s evidence because they were simply that; contemporaneous file notes. On her own finding they were prepared for a purpose of coaching. They weren’t self-serving. She didn’t find that they were prepared for a self-serving purpose to later entrap Mr Cannan or Mr Fuller. She found they were prepared for coaching purposes.

PN166.

So in our submission, to discount the weight of Mr Fraraccio’s evidence and those notes was an error and it’s a manifest error. The file notes were certainly evidence of Mr Fraraccio’s views at the time. They gave records of conversations that he had, particularly with Mr Fuller about Mr Fuller’s behaviour and attitude. Her Honour finds that – sorry, Deputy President finds that there is an unblemished record. But the record of conversations between Mr Fraraccio and Mr Fuller clearly indicates that he had been told about concerns with his behaviour, his attitude and his need to change.

PN167.

It had not – and it was conceded at the time and it’s conceded now – got the point of formal proceedings. In his evidence Mr Fraraccio said, “Now I look at it, I probably should have started formal disciplinary processes earlier.” But he talked about wanting to coach them and get them to improve. That’s why he had prepared the notes. In our submission, the finding at 228 that the notes had virtually no corroborative weight, as it appears to be the case, is clearly a manifest error and one that does not support the conventional approach to such evidence certainly in this Commission.

PN168.

We do not suggest for one second that were they produced absent sworn testimony from Mr Fraraccio they would be able to stand independently. They were his own personal file notes. But we do suggest that in her consideration of which account was to be preferred and the extent to which she was required to consider different accounts, the contemporaneous file note was a matter that she should have considered and taken into account when reaching her conclusions. Now, if she did that, it doesn’t show anywhere in the decision, and, more particularly, it appears that she has chosen to disregard it in its entirety.

PN169.

In relation to procedural fairness, we say that the role of representatives in these processes is one that can become complicated. I note in the Anning decision that the Member referred to the role of the representative in that case as having been unhelpful. I’ll come to that later. It’s certainly not contested that from about April of 2013 the respondents were, together with the other four employees, directly represented by the CFMEU. Mr Reeves was involved as the organiser directly, a Ms Marshall, who’s a legal officer at the CFMEU, was involved, Mr Noel Washington was involved and Ms Shelley Shay, who’s the officer manager who was present at meetings, we understand, for the purpose of taking notes or minutes.

PN170.

Mr Wilson-Haffenden gave evidence that – and we note Mr Washington didn’t give evidence, wasn’t called to give evidence, didn’t provide a statement in these proceedings. The only evidence which was unchallenged was the evidence of Mr Wilson-Haffenden about the discussions that he had with Mr Washington. Mr Wilson-Haffenden’s evidence was that he discussed with and advised Mr Washington of matters additional to the direct outcome of the investigation process. This is found at – in addition to the references that I’ve got in the outline, it’s also at PN 3354, 3207, 3180, 377 and 3857-3959. Mr Reitano and Mr Wilson-Haffenden entered into quite a debate about what had occurred and there are a number of questions over several pages of transcript around that.

PN171.

Mr Wilson-Haffenden’s evidence was that he conveyed very clearly to Mr Washington some of the matters that were being – sorry, that there were additional matters being considered. He understood that had been conveyed because it was referenced – conveyed to the applicants because that had been referenced in some of the show cause meetings. The Deputy President does not address the extent to which that information was conveyed or does not appear to have accepted that information was conveyed through the representative. We say that is an error.

PN172.

The appellant was entitled to rely upon the representatives of the respondents for the purpose of conveying information relevant to the process. When this process first started a dispute was notified. There was a rapid response to the standing down process. A process was then agreed. At each interview with Mr Simmonds Ms Marshall and Mr Reeves were both present with the respondents to the investigation process. No complaint was received from either of those individuals about the process prior to a decision being made to terminate employment or impose some other outcome.

PN173.

No formal complaint was made. No dispute notification was re-agitated. Lee C was not requested to relist the matter because the parties had hit a hurdle. Mr Wilson-Haffenden conveyed that there was additional information. No one attended – no one from the CFMEU said, “You need to put that to us formally. We don’t have enough information to obtain instructions from our members to allow them to respond,” nothing.

PN174.

The Act does not require that all matters being considered by the employer be put formally into allegations letters. There is no decision of this Commission of which I’m aware that says, “If you haven’t got full and complete particulars in your letters of termination or your letters of show cause, if you refer to other things, the whole process falls foul.” In my submission, to require that of parties, particularly when you’re dealing with six employees and a union which is, I think it would not be unfair to say, highly articulate in the case in dealing with litigation and related matters - - -

PN175.

THE SENIOR DEPUTY PRESIDENT: How do you say, Ms Zeitz, information which wasn’t provided directly to Mr Cannan and Mr Fuller was communicated by the CFMEU?

PN176.

MS ZEITZ: We say it was conveyed to their representatives. We say Mr Wilson-Haffenden conveyed it to the representative, Mr Washington. Mr Wilson-Haffenden referred in his evidence to elements of what he had discussed with Mr Washington being raised in interviews with some of the six who were invited to the show cause meetings, required to attend the show cause meetings. So he understood from that totality of information that the additional aspects of the matter that the company regarded to be of concern were in fact conveyed. He’s entitled, in my submission, to rely upon that.

PN177.

THE SENIOR DEPUTY PRESIDENT: So it wasn’t something directly put to Mr Washington that, “We’re going to put these matters – we’ll rely on these matters against Cannan and Fuller and you should put to them”. You’re saying Mr Washington should have inferred something out of the broader representation of a range of employees in respect of the allegations Mr Cannan and Mr Fuller were expected to answer. Is that the submission?

PN178.

MS ZEITZ: I think it comes more to what is the role of the representative in these processes? In simpliciter, if something is conveyed to me when I’m representing a client, it is expected, and indeed I would be in all sorts of professional trouble, if I didn’t convey that to my client for instructions and/or information. Ms Marshall was involved in the process and had been since the beginning. Mr Washington was involved in the process and, in my submission, would be – my client was entitled to rely upon the fact that he’s a senior union official.

PN179.

THE SENIOR DEPUTY PRESIDENT: In terms of the additional 12 statements relied upon by the appellant, specifically how was the reliance on those and/or certain information within them against Mr Fuller and Cannan communicated to Mr Washington or Ms Marshall?

PN180.

MS ZEITZ: At paragraph 3180 Mr Wilson-Haffenden gives evidence that he had already provided details of having discussions with Mr Washington and others –

PN181.

where I’d said that there were other people that were referred to in these discussions. I had a discussion with Mr Washington and Mr Reeves that it’s not just one team leader, it’s a lot of team leaders. I had discussions with Mr Washington and Mr Reeves where I indicated that one team leader was at the point of committing suicide - - -

PN182.

THE SENIOR DEPUTY PRESIDENT: Sorry, give me the page reference again.

PN183.

MS ZEITZ: Sorry. It’s page 473, PN 3180, volume 1. The discussion then continues for a couple of pages which - - -

PN184.

THE SENIOR DEPUTY PRESIDENT: Sorry, 3180.

PN185.

MS ZEITZ: Sorry, page 473 of volume 1.

PN186.

THE SENIOR DEPUTY PRESIDENT: 473, sorry. In the transcript, is it? 473, yes. Okay, I’m with you.

PN187.

MS ZEITZ: So at PN 3180 he says:

PN188.

I already have in the documentation that I’ve already provided details of having discussions with Mr Washington and others where I’ve said that there are other people we’ve referred to in these discussions –

PN189.

et cetera. He said, “I had a discussion” – this is about halfway through the paragraph –

PN190.

with Mr Washington, and Mr Reeves, who was there at the time said, “It’s not just one team leader, it’s a lot of team leaders.” I indicated that one team leader was at the point of committing suicide. So prior to terminating an employee it was certainly clear to the CFMEU that I was considering far more things than just the discussion with just the findings of Mr Simmonds.

PN191.

THE SENIOR DEPUTY PRESIDENT: But isn’t there some obligation on the employer to put specific matters it’s relying on to an employee in respect of whom it’s terminating termination rather than simply – the allegations go beyond those which have been put to you or the matters we rely on go beyond those we put to you.

PN192.

MS ZEITZ: He says that - - -

PN193.

THE SENIOR DEPUTY PRESIDENT: This isn’t a context where there’s a show cause process.

PN194.

MS ZEITZ: Yes.

PN195.

THE SENIOR DEPUTY PRESIDENT: It’s show cause why, on the basis of this information, we shouldn’t do something.

PN196.

MS ZEITZ: There was quite a debate over the ensuing pages. My recollection is – and I’ll see if I can find the – that Mr Wilson-Haffenden was concerned about the privacy and the disclosure of the personal information in any detail for the purposes of show cause. He talked about – and I just have to see if I can pick up – I’ll take you to the references where he actually says what he did and then I’ll pick that up as we go through.

PN197.

THE SENIOR DEPUTY PRESIDENT: That simply confirms that specific information wasn’t put to either Cannan, Fuller or the representative.

PN198.

MS ZEITZ: No, and it was accepted all along that the process that the parties had agreed was that Simmonds C would conduct an investigation, which she did. Her Honour finds that the findings of Simmonds C were rejected by the company. There were two aspects with which the appellant departed from Simmonds C’s report. The first was where he found that there had been bullying behaviour and misconduct but that there was no intention and therefore it didn’t warrant the finding that the action – I can’t quite remember the term he used now – the company – and her Honour accepted this –said, “Well, no, bullying behaviour doesn’t require intention.” That’s clear.

PN199.

That was accepted by the Deputy President and it was, in our submission, an entirely appropriate matter for the appellant to take into account in reviewing the report that was provided by Mr Simmonds. So that was the first aspect. The second aspect was that Mr Wilson-Haffenden said that he – I think his words were, “He works with these people,” that being the 12, for want of a better term. I’ll see if I can find the actual reference. But my recollection is that he was very sensitive to the fact that the information, in his view, disclosed the sorts of behaviours that were now being – this may be my extrapolation – that were being replicated in the behaviour that was under immediate review.

PN200.

So he says there were a number of things discussed. But at PN 3180 and following he said that he talked around – this is at 3182 – a whole range of information available with Mr Washington. He said his reasons for terminating employment – this is at 3184 – were his response to the allegations, which I’ll come to separately, taken – and the findings – in the context of the broader information he had available. And that’s the 12 statements. He said at 3187:

I had a broader discussion in those interviews –

So he refers to a broader discussion in the interviews –

Because I believe, Mr Reeves, for example, said to me in one of those interviews that I mentioned there were a whole range of previous events and Mr Reeves said, “That’s right, one of them was going to commit suicide.”

PN201.

He says then at 3193 he put the information – he took in the context of all the information he had available, he put the information to Mr Cannan and Mr Cannan refused to acknowledge any wrongdoing. I’m going to come to the issue of contrition because her Honour places a lot of weight on that finding and we say it’s simply not open to her on the evidence, but I’ll get to that. She relies upon it for the purposes of reinstatement. At 3204 he says:

PN202.

In reaching the decision to terminate –

PN203.

this is a proposition put by Mr Reitano –

PN204.

your employment, we’ve taken into account all the available information, your employment history, your conduct, the response to investigation, incomes.

PN205.

He said he couldn’t quite recall what he said to Mr Cannan in the meeting but certainly didn’t put the detail in the letter. That’s what your Honour has referred to. He did put in the letter – and this is at 3206 –

PN206.

In reaching the decision to terminate your employment, we’ve taken into account all the available information.

PN207.

He says at 3207 that was referring to all the information he had that he had shared with a number of people, including people from the CFMEU. He says at 3215:

PN208.

I didn’t give him the 12 statements. However, I would say when I was having discussions in the termination meetings, as I had with the CFMEU the day before and in previous discussions, we were taking the broader information into consideration.

PN209.

None of that evidence was challenged.

PN210.

THE SENIOR DEPUTY PRESIDENT: What does that evidence show in terms of putting the 12 statement matters to Cannan and Fuller?

PN211.

MS ZEITZ: Sorry, your Honour?

PN212.

THE SENIOR DEPUTY PRESIDENT: What does that evidence show in terms of whether or not the matters relied on by the appellant to dismiss Fuller and Cannan were put to them?

PN213.

MS ZEITZ: Mr Wilson-Haffenden said that he had – Mr Reeves was present in the meetings. There’s actually handwritten notes in the appeal books which I can take you to which were the contemporaneous record. He does say at 3304 – this is in relation to the 12 statements – Mr Wilson-Haffenden said he didn’t mention to Mr Cannan anything about Mr Schultz, Mr Seabourne, and that’s certain. He remembers Mr Reeves saying – and again referencing to one of the team leaders looking to commit suicide. He said he rejected that he had not raised it with other people. It may have been in Mr Cannan’s meeting – he can’t swear to that – that we were saying there was other information available.

PN214.

This was in the context where there were six show cause meetings taking place over a period of time. The common element in all of that was the representation by the CFMEU, who were present at all the meetings. I come back to the – it was certainly disclosed as part of the process leading to termination to the representatives for Mr Cannan and Mr Fuller that there was other material being considered. There was some description of that given to Mr Washington, at least on the evidence of Mr Wilson-Haffenden, not contested, and Mr Reeves being present, again not contested.

PN215.

So for the Deputy President to say that that information was not – to actually apparently positively find that information was not conveyed in any sense, in our submission, is an error. Although – and I’m just trying to find the reference where Mr Wilson-Haffenden talked about his concerns that he didn’t want to – I may have to go hunting for it. But my recollection is that Mr Wilson-Haffenden talked about a concern that the 12 individuals – that that information – he would be reluctant to have disclosed that given the nature of the allegations and the - - -

PN216.

THE SENIOR DEPUTY PRESIDENT: It’s pretty hard to respond to allegations you don’t know the nature of.

PN217.

MS ZEITZ: It is and it isn’t. I say it in this context: what was being put to Mr Cannan and Mr Fuller was that they had engaged in bullying behaviour towards at least Mr Fraraccio and potentially others. They denied that. They denied it absolutely. I think in Mr Fuller’s meeting Mr Wilson-Haffenden said Mr Reeves took over and there was really no response provided or minimal response provided. The difficulty is – and this is what Mr Wilson-Haffenden’s evidence went to – if you have someone who’s standing there, “It wasn’t me,” and it was dealing with the character of behaviour that was consistent over a period of years, at which point do you stop putting allegations?

PN218.

THE COMMISSIONER: I understand that point. However, was that the high point of what the employer was putting to these people in the show cause discussions? That is, was it a general statement that, “You are one of six people who are engaged in bullying activity of a general nature, that you make it difficult to have communications, you roll your eyes and you’re part of this culture,” or was it more specific in the sense of – I’ll take you to I think it’s Mr Seabourne’s statement where he talks about suicidal thoughts. Now, that wasn’t disclosed, as I understand it, directly.

PN219.

MS ZEITZ: No.

PN220.

THE COMMISSIONER: But was it the case that the high point of the conversation was, “Well, look, you’re part of a bullying culture,” or was the high point at that other end of, “Look, we’re having to deal with someone who’s got suicidal thoughts”?

PN221.

MS ZEITZ: No, we wouldn’t put it at the point that we’re having to deal with someone who has suicidal thoughts. It was put more in the context of – and this is where, I suppose, the twists and turns of the process – and my client never resiled from the fact that with the benefit of hindsight you can always do things better. The employees had specific allegations – Mr Simmonds’ findings were put to them in letters dated 4 October and they were invited to show cause meetings. The matters that they addressed in those show cause meetings were the subject of general denial. Mr Wilson-Haffenden’s evidence was that they consistently – both Mr Cannan and Mr Fuller gave no indication that they recognised that their behaviour was in any way inappropriate or needed to change.

PN222.

He did not seek contrition. That is simply not open on the evidence, in our submission. What he sought was an acknowledgment that their behaviour needed to change. I don’t say this to be trite. We don’t actually care whether they agree with us or not, as long as they behave appropriately. I mean, at the end of the day, if someone can – there are plenty of laws out there that we disagree with and we comply with them because we must. Mr Wilson-Haffenden wasn’t looking for contrition. He was looking for an acknowledgment that the behaviour needed to change; and that’s what his evidence was.

PN223.

THE COMMISSIONER: So was the conversation in the show cause meetings then a situation of saying, “We have this report from Mr Simmonds. It articulates where you stand individually and collectively. And, by the way, we also have other material which reinforces what Mr Simmonds has said to us”?

PN224.

MS ZEITZ: The best example, I think, is the handwritten note, which I’ll try and locate. Mr Wilson-Haffenden’s handwritten notes of the meetings appear at 2285 and following. The notes of Mr Cannan’s response are at 2288 and following. So you can see there that he is responding to the letters that had been sent and the matters raised in the correspondence; that’s not a surprise. He talks about puzzled as to how he’s being disrespectful. Most days he had a bit to say. He talks about the David King incident, which is the one where he had suggested that Mr King’s account – Mr King wasn’t qualified or appropriate to be performing – sorry, he criticised Mr King’s capacity in front of the panel. So his reference to matters that have been raised with him.

PN225.

What comes out of reviewing is he says, “No one had told me I’m negative.” There’s a discussion around:

PN226.

There’s nothing in my file that says I’ve been anything but a good employee.

PN227.

So he’s responded to the matters that have been put in the correspondence. Mr Wilson-Haffenden’s evidence was there was nothing in his response that indicated, to his satisfaction, that there was a preparedness to make the changes that the company required of an employee who wished to be continued to be employed by the organisation, namely, to basically comply with the code of conduct and the values. Mr Fuller – you’ll see that commences at 2322 and you’ll know that Mr Reeves took a more interventionist role in this particular exchange. This is where the reference in the decision to the D-panel being full of hate, not angry, was at 2326.

PN228.

That, in at least respect to Mr Fuller, suggests that broader issues were being discussed than merely the response to the particular matters being put. I don’t resile from the fact that in an ideal world it would have perhaps been preferable for those interviews to have occurred on the basis of saying, “We’ve had discussions with your representatives and we understand that you have been informed of and are apprised of the additional matters that we are taking into account.” That could have occurred; it didn’t. With the benefit of hindsight, it would have been a preferable outcome. We don’t resile from that.

PN229.

But the fact is that Mr Reeves did refer to those matters – that’s Mr Wilson-Haffenden’s evidence – in those interviews and it was information that had been conveyed. This is not – and I don’t mean this in an inappropriate sense, but this is not a union organiser that is shy about notifying disputes if they consider that there is a fundamental error or any error in process occurring. They were fully apprised of the fact that further information was being relied upon; they didn’t seek the particulars. They’d never been shy about that in the past. Mr Wilson-Haffenden was entitled to rely on a relationship that has a long history; and he did.

PN230.

We say as a counsel of perfection, absolutely have to stand up and say, “It’s not perfect,” but it doesn’t mean – and her Honour didn’t consider sufficiently, in our view, the fact that the information had been conveyed to the representatives who were aware of it. So when it comes to determining whether or not there’s been procedural fairness, the question is whether the information relied upon by the employer has been put with sufficient particularity to enable the employee to respond. It had gone to the employees directly in the show cause letters and it had gone to their representatives indirectly with respect to other matters which Mr Wilson-Haffenden had determined were of a sensitive nature and he didn’t wish to disclose the full detail, but he had conveyed information.

PN231.

It was well-known and unchallenged that it was known to the union as representatives of those employees. It would be, in my submission, a remarkable leap to suggest that a representative of an employee has absolutely no role in the conveying of information from the employer to the employee in dealing with matters under the Fair Work Act. That would simply be contrary, in my submission, to long-established practice, and indeed, inconsistent with the decision that I’ve referred to and referred her Honour to in Anning where the representative role was regarded as unhelpful but not as fatal to the ultimate finding that reinstatement was not warranted.

PN232.

The question for her Honour was not that there had been, as she found, or appears to have found, that there was – that the applicants were placed at a considerable disadvantage to be able to show cause as to why the employment should not be terminated. That’s at 248. We say they weren’t. The information was conveyed to their representatives and they were entitled to rely upon that being conveyed. At 240 the Deputy President found that the contents of the 12 statements were part of the reason for the dismissals where Mr Simmonds had found that allegation not to be made out.

PN233.

Mr Wilson-Haffenden addressed that. The more particular was that she then finds – the matter of particular concern is that these matters, together with contrition, which form part of the dismissal reasoning, were not disclosed to the applicants prior to at the time of dismissal. We say, firstly, they were never asked to be contrite. And I’ll come to that. We’ll say, secondly, there’s no evidence of contrition either. Secondly, there was no obligation to provide the contents of the 12 statements. The obligation is to provide sufficient information about alleged conduct upon which an employee is able to respond.

PN234.

The information was put to the employees in the show cause letters, identified conduct that the employer asserted disclosed bullying behaviour; it was denied flatly. I will try and find the reference where Mr Wilson-Haffenden said, I think in evidence – no doubt I’ll be corrected if I’m incorrect – that they had denied that behaviour, so what efficacy was there in him putting further – that’s my words – allegations to them, they were denying everything. In relation to paragraph 14 of the outline, I’ve already addressed our submission – I won’t go to it again – that the Deputy President appears to have accepted all evidence that was contrary to the evidence of the appellant’s witnesses where it differed from that of the respondent’s.

PN235.

In particular, at 14.6 we refer to the incident of Mr McCullum. Mr McCullum didn’t give evidence. He wasn’t called to give evidence. Mr Fraraccio’s observation of an interaction was that he believed that Mr Fuller had engaged in bullying conduct. I also note the contemporaneous file notes issue. Her Honour rejected that account and his observation on the basis that Mr Simmonds had apparently had a telephone conversation where Mr McCullum said he didn’t feel bullied. Mr McCullum wasn’t called, his evidence wasn’t tested. Mr Fraraccio’s evidence was that it appeared to him from the exchange that Mr McCullum was uncomfortable and under pressure.

PN236.

This related to Mr McCullum and this went to a considerable matter debate in the evidence, indicating that he preferred to work, I think it was on the feed room floor and not to rotate. The issue of job rotation was near and dear to Mr Fuller and Mr Cannan and something that they consistently rejected as a work practice change that they would find acceptable. When cross-examined on that both indicated that – I think Mr Fuller’s evidence was – I could be wrong, might be Mr Cannan – that it was a democratic process and if an individual employee wished to change their work practice, it would be something that generally the group would have to agree or not agree.

PN237.

THE SENIOR DEPUTY PRESIDENT: So your position in that respect is that it’s a significant error for Wells DP to have preferred Mr Simmonds, the investigator’s record of what Mr McCullum told him about how he viewed certain behaviour over the perception of Mr Fraraccio as to how Mr McCullum perceived that behaviour.

PN238.

MS ZEITZ: Because what is interesting with the Deputy President’s assessment of Mr Simmonds’ report is she rejects the findings that are adverse to the applicants and accepts the findings that are adverse to the appellant. In this case, she didn’t have any direct evidence from Mr McCullum. All she had - - -

PN239.

THE SENIOR DEPUTY PRESIDENT: How could she make any finding at all as to his state of mind or how he felt? Mr Fraraccio’s evidence as to how he perceived Mr McCullum to feel isn’t evidence of how Mr McCullum felt.

PN240.

MS ZEITZ: Mr Fraraccio wasn’t attempting to give any evidence that he knew how Mr McCullum felt. What he gave evidence of is the behaviour that he observed Mr Fuller apparently engaging in towards Mr McCullum.

PN241.

THE SENIOR DEPUTY PRESIDENT: I’m sorry, I thought I heard you say earlier that he gave evidence as to his perception of how Mr McCullum - - -

PN242.

MS ZEITZ: Well, he said his perception was there was bullying behaviour. Now, he didn’t say that his perception was that Mr McCullum thought he was being bullied. He said his perception was there was bullying behaviour. Mr McCullum had approached him to talk about a change in his work practice. Mr Fraraccio observed what he described as an exchange that he believed to be – I forget the exact word, whether it was “intimidating” – his assessment was that it appeared to be bullying behaviour by Mr Fuller towards Mr McCullum. Shortly thereafter Mr McCullum approached him and indicated he no longer wished to rotate – sorry, no longer wished to work on the feed turn.

PN243.

THE SENIOR DEPUTY PRESIDENT: Very well.

PN244.

MS ZEITZ: He made a file note about that. He gave evidence about that. Mr McCullum was not called. I think, from memory, Mr McCullum has left – working interstate – had certainly left the company by then.

PN245.

THE COMMISSIONER: Ms Zeitz, can you help me with the reference in the decision where that paragraph or that finding is made?

PN246.

MS ZEITZ: Yes, it’s at paragraph 230.

PN247.

THE COMMISSIONER: Thank you.

PN248.

MS ZEITZ: Her Honour also concluded – and I’ve addressed her finding at 244 – that the letters of termination refer to the evidence – the findings of Mr Simmonds reference the fact they’ve taken into account all information and there was no mention of the additional information from the 12 statements. I’ve addressed that in terms of the behaviour that was ongoing. At its heart what was occurring is that the employment of these two men was terminated because the conclusion of the company was – and we say the evidence supports – that Mr Fraraccio had been bullied by them. That’s what the termination letters say.

PN249.

It was certainly put to them over – with respect to Mr Cannan, that on two occasions his conduct amounted to bullying and/or harassment. On a number of occasions his conduct amounted to a breach of the Nyrstar Code of Conduct. That’s at page 136. It’s with respect to Mr Cannan. At 137:

PN250.

Your lack of acknowledgment, recognition and accountability for your conduct and failure to demonstrate any remorse for your behaviour is a great concern.

PN251.

Her Honour extrapolates it out to be a contrition which Nyrstar craves. I think it’s “crave” which is the word she used. There’s no evidence that contrition was craved. Her finding in that respect is, in our submission, plainly wrong. Mr Fuller’s termination letter at page 142:

PN252.

On four occasions your conduct amounted to bullying and/or harassment and on seven occasions your conduct amounted to a breach of the Nyrstar code.

PN253.

It referenced the reason that they were stood down on pay at the beginning of that letter. Actively knowingly engaged in behaviour designed to discredit and prejudice the team leader in his appointment and engaging in inappropriate behaviour. So it’s quite clear, in our submission, that the information – the basis upon which they were being terminated was clear. That was because they had engaged in bullying conduct. The point at which it had commenced with respect to other team leaders was a referral point but not the sole basis.

PN254.

Indeed, the reality was these two individuals were found to be bullies, they behaved as bullies and they indicated in – neither of them indicated in their show cause meetings that they had used any of the intervening 16 weeks to reflect upon their behaviour and consider whether there needed to be a change on their part. It was all about, “No one ever told me. How was I to know?” The reality was had they – and Mr Wilson-Haffenden’s evidence was this – had they come into the meeting and said, “We get it. We do need to change. We have engaged in inappropriate behaviour,” he would have given that due weight and consideration and it may well have been a different outcome. That was absent in its entirety.

PN255.

Now, her Honour finds that there was evidence of contrition. She relies upon that as a basis for reinstatement. We say that’s just wrong. She relies upon one statement from Mr Fuller that was given to Mr Simmonds and not repeated at any stage between the date upon which he was interviewed by Mr Simmonds and the date – not repeated at all until after the termination of employment was given effect. Her Honour finds – and this is at page – her Honour finds that this is evidence of contrition when she addresses whether reinstatement is appropriate. This is where we take issue. This is at 277:

PN256.

Having regard to the contrition expressed by both Mr Cannan in cross-examination and by Mr Fuller in interview with Mr Simmonds, I am satisfied that both applicants are now cognisant of their conduct and capable of change.

PN257.

Exhibit A8 is the transcript of the recording of Mr Simmonds – Mr Fuller’s statement. That is found at 1195. So it’s exhibit A8.

PN258.

THE DEPUTY PRESIDENT: What page are you on, I’m sorry?

PN259.

MS ZEITZ: 1195.

PN260.

THE DEPUTY PRESIDENT: Thank you.

PN261.

MS ZEITZ: So what the transcript says – and there are two extracts –

I’d just like to say I had no intention of bullying or intimidating, harassing or any of these allegations. I’ve not been made aware of anything to that nature to the person. I haven’t been asked to stop this. I’ve had no disciplinary action.

PN262.

That’s not contrition. That’s a statement that he didn’t intend to bully. Now, notwithstanding that, this is relied upon by her Honour when it is not disclosed to Nyrstar at any stage in the process. So Nyrstar was not advised that that statement had been made. Mr Reeves didn’t raise it in the interview. Mr Fuller didn’t raise it in the interview. It wasn’t referenced in any way in the intervening period. Mr Fuller did not suggest in his show cause interview, “Look, you’ve got it wrong. I told Mr Simmonds that I regretted what I did and I’ve learned.” Nothing.

PN263.

The Deputy President relies upon that as evidence of contrition and inserts into the process post the employer becoming aware – post the termination and post the employer becoming aware of the existence of that statement in circumstances where she’s criticised the employer for failing to disclose everything it had in fulsome detail at the show cause meeting.

PN264.

THE COMMISSIONER: Are you saying it was not then the subject of cross-examination?

PN265.

MS ZEITZ: With Mr Fuller? Mr Fuller wasn’t asked and has, to my knowledge, never said whether he regrets what happened or not.

PN266.

THE COMMISSIONER: So there were no questions asked on this comment.

PN267.

MS ZEITZ: No. He’s had plenty of opportunity to volunteer it is what we would say.

PN268.

THE SENIOR DEPUTY PRESIDENT: What do you say of Wells DP’s finding of an expression of contrition by Cannan in cross-examination in 245 and 277, which she’s relied on to say there’s any error in accepting evidence in cross-examination of contrition?

PN269.

MS ZEITZ: Well, I don’t say that it was contrition. This is at pages 281 and 282 of the transcript.

PN270.

THE SENIOR DEPUTY PRESIDENT: 281?

PN271.

MS ZEITZ: Yes. There was a further reference which I’ll also – now, in relation to that, he says that he was surprised that Mr Seabourne had thought that way, he was shattered. That would be a normal human reaction to hearing that someone had considered that. He says:

PN272.

To think, you know, that – that you may have had a part to do with someone that was thinking along those lines – I had no idea.

PN273.

So even in this point, faced with that information, he’s not accepting that his behaviour has been anything other than, at its highest, it may have been – may have had a part. I mean, he's read Mr Seabourne’s statement where he quite clearly says, “This is the behaviour of that panel, including Mr Cannan, who contributed to my decision” –

PN274.

I had no idea they felt that way. It’s caused me to reflect on my own behaviour.

PN275.

We accept that. Until that point in the transcript no indication from Mr Cannan that he had reflected on his behaviour at any time. So if you’re looking at the point of dismissal when decisions were made, the appellant didn’t know that Mr Cannan had any capacity to reflect; he’d denied any behaviour. You get to the – and just to come back, when the parties were issued with directions for filing in these proceedings the appellant was directed to serve their material first, file and serve, which is a little unusual, given the fact that it wasn’t summary dismissal.

PN276.

I’m not even going to go to why it happened. We didn’t appeal the direction. But the material that the appellant had relied upon in every respect was available to Mr Cannan and Mr Fuller before they walked in to the first day of hearing. They filed their statements in response and at no point in any of their evidence-in-chief did they say, “We have reflected on the behaviour, given that we now have all the information, and we acknowledge that our behaviour needed to change.” Didn’t say it.

PN277.

THE SENIOR DEPUTY PRESIDENT: You say that doesn’t arise from the passage of your statements - - -

PN278.

MS ZEITZ: No.

PN279.

THE SENIOR DEPUTY PRESIDENT: Very well.

PN280.

MS ZEITZ: I accept that there was an emotional response. I absolutely accept there was an emotional response. But there is nothing in that passage – because shortly after that – the whole tenor of his evidence is, “Well, look, that’s just the way I am.” At 1482 he says:

Look, I never conveyed that I regret it. I certainly regret what occurred.

Again, not wishing to be trite, but so does a speeding motorist who causes an accident and injures somebody. I mean, regret is one thing. If it doesn’t change the behaviour and there’s no indication of the need to change the behaviour, what confidence could the appellant have had that it would change? We say there is none of that suggested. Regret is a wonderful thing and so is remorse. But a willingness to change was never identified by Mr Cannan.

PN281.

THE SENIOR DEPUTY PRESIDENT: There’s remorse expressed.

PN282.

MS ZEITZ: This is at 1482.

PN283.

You can’t show remorse if you believe you’re in the right.

PN284.

That gives the appellant a lot of confidence for the future.

PN285.

THE SENIOR DEPUTY PRESIDENT: But further down the track:

Reading the statements that other people put in, I do feel some remorse.

PN286.

MS ZEITZ: Yes, he feels remorse.

PN287.

THE SENIOR DEPUTY PRESIDENT: Very well. If that’s the evidence, we’ll make our own conclusion as to whether there was any significant error.

PN288.

MS ZEITZ: The issue for the appellant is that the finding is that there was contrition. That’s relied upon at 277 as a basis for being satisfied that they are cognisant of their conduct and capable of change. In my submission, there is absolutely no evidence of that anywhere in the material. What there is evidence of is 20 years of behaviour and resistance to change. The other aspect of this which is not clear – and I should just mention this as a – these proceedings were never formally joined; they were run concurrently.

PN289.

While the Deputy President has addressed different aspects insofar as the individual applicants were concerned, it appears that when she – and we say that she has applied different considerations. If my submission is accepted in relation to the evidence of contrition, she certainly hasn’t identified what she relies upon with respect to each applicant.

PN290.

THE SENIOR DEPUTY PRESIDENT: She did, didn’t she? She relied on Mr Cannan’s evidence in transcript and Mr Fuller’s statement to Mr Simmonds.

PN291.

MS ZEITZ: In my submission, the statement of Mr Simmonds there’s clearly no evidence of contrition whatsoever.

PN292.

THE SENIOR DEPUTY PRESIDENT: That’s a different problem. You’re saying she hasn’t identified what she’s relying on in relation to each applicant. Well, she clearly has.

PN293.

MS ZEITZ: No, I’m sorry. I withdraw that, your Honour. I was a different tangent. Now, we do rely upon and did before her Honour the decision in Anning. I won’t go to it in great detail. It is included in our authorities. The Commission member in that case identified complex facts in the case similar to here. There was clearly a finding that Ms Anning did not accept or continued to deny the behaviour. At 55 – and this is what we rely upon as to what was put in the show cause meeting – there was sufficient description of the matters and instance of the behaviour complained of. We say that was put and that to the extent that the Deputy President has found it wasn’t, we say that’s an error.

PN294.

This is particularly so of the serious charges of bullying and harassing behaviour clearly identified to them and their complaint of an aggressive or intimidating manner, which is referenced by the witness evidence that was given. Ms Anning’s response was, in the broad – this is still at 55 – to deny every single matter. That is the response of each of these individuals in relation to the matters that were put to them. The member then found:

PN295.

This is not a case where there are shades of grey or debate about meaning or nuance.

PN296.

Once found that the behaviours occurred, there was a consideration about whether there was an opportunity to respond. It was put to Mr Wilson-Haffenden that he had a concluded view before the show cause letters were sent. That was rejected by him and we say that that was appropriately not relied upon by her Honour. The Commission member then finds that – he concluded that Ms Anning’s blanket denial was considered. That’s really the evidence of Mr Wilson-Haffenden. These were blanket denials. This wasn’t, “We might have done this, but we haven’t done that,” or, “Look, we’ve got a different view about this.” This was blanket denials.

PN297.

We say, therefore, the procedural deficits, which is what was referred to in this case, as they may exist in this case do not substitute for conclusions which, on the evidence, must be reached and have been reached. So we say that if it is concluded that the behaviour occurred as the appellant witnesses said, then that is an outcome that we rely upon in this decision to say that any defects in the procedural process were not so great as to redirect an outcome that resulted in reinstatement. This is not a case where there has been no valid reason for termination of employment found.

PN298.

What was found is that there was a valid reason for termination. It’s then found that the dismissal was summary – and that’s referred to twice in the decision and once in the other decision that I’ve referred to as to the consequential orders decision – fundamentally flawed in my submission and must be satisfied. I’ve already addressed in part the B, C and D decision. I note that part of it has sort of wound its way back through the tribunal in various guises, but I don’t think the fundamentals of the decision have changed.

PN299.

The decision in B, C and D was directed to – the Full Bench found at paragraph 70:

PN300.

The point is that there are some forms of wilful misconduct like deliberate fraud against an employer or serious unprovoked assault or, we say, like bullying behaviour which is unlawful and where harm is caused to other employees –

PN301.

and that’s uncontested –

PN302.

that will almost certainly merit dismissal, irrespective of an employee’s length of service, good disciplinary record and personal circumstances. Employees do not need to be warned that such conduct will be treated seriously by the employer. There are other forms of misconduct that are clearly not such as to merit summary dismissal but should be the subject of warning or warnings or active steps.

PN303.

Here there wasn’t a summary dismissal but certainly there was conduct of the seriousness identified in the B, C and D decision. In that decision the conduct was admitted. That’s at paragraph 72. Here it was consistently denied. The reference to the nature of the behaviour was that most of the material was soft-core pornography, I think, no more salacious than might be viewed on free-to-air television, small amount of material properly classified as hard-core; that’s at 84. Here we’re dealing with a completely different set of circumstances. The Full Bench there specifically found that no harm or damage had been caused, at paragraph 90. Here there was clear evidence before the Deputy President that harm and damage had been caused to individuals by the conduct of the employees concerned.

PN304.

When that is all taken into account – sorry, there was a finding at 96 that there might have been some degree of tolerance regarding the behaviour and a lack of disciplinary investigation. Here I’ve already addressed the concerns, the issues that the employees that were the victims of this behaviour simply didn’t know how to respond.

PN305.

THE SENIOR DEPUTY PRESIDENT: I’m sorry, what’s the error that you’re addressing at this point, Ms Zeitz?

PN306.

MS ZEITZ: Sorry, your Honour, I’ve moved to the respondent relies upon the B, C and D decision. So I’m simply addressing - - -

PN307.

THE SENIOR DEPUTY PRESIDENT: Sorry, the respondent relied on - - -

PN308.

MS ZEITZ: It was relied on by her Honour and I’m simply going to those parts of the decision which distinguish from the circumstances that faced her Honour.

PN309.

THE SENIOR DEPUTY PRESIDENT: Which decision is relied on?

PN310.

MS ZEITZ: Sorry, in the B, C and D decision I’ve just referenced – the paragraphs I’ve referenced are found in the Full Bench decision, noting that – I mean, this is a decision that led to orders for, I think, remittance back and reinstatement ultimately or there was – it was declined to grant leave to appeal. I think it then went to the Federal Court, from memory, and got bounced back. These were factors that that decision took into account in determining to reject the appeal. We say that this case that is before – that this appeal is quite distinguishable from B, C and D in relation to several matters. To the extent that the Deputy President relied upon this decision to decide that reinstatement was an appropriate remedy, we say it’s so distinguishable on the facts that her reliance was flawed.

PN311.

THE SENIOR DEPUTY PRESIDENT: Where does she rely on it as a factor in remedy?

PN312.

MS ZEITZ: At 257.

PN313.

THE SENIOR DEPUTY PRESIDENT: It’s relied on there not for remedy but for making a conclusion as to merit and it’s relied upon, as stated at 258, that condonation is a relevant consideration in determining whether a dismissal is harsh, unjust or unreasonable. That’s the extent of the reliance, is it not?

PN314.

MS ZEITZ: I’m perhaps pre-empting what I understood will be one of the submissions that I saw in the outline of submissions filed by the respondent. So I may simply leave that.

PN315.

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Zeitz, do you have much longer? We’re proposing to adjourn at quarter till 1 until 2 o’clock.

PN316.

MS ZEITZ: I’ll probably be about 10 or 15 minutes, your Honour. I just want to go – I’m really at the last point, but I’m happy to hold that over. It’s a discrete point.

PN317.

THE SENIOR DEPUTY PRESIDENT: But you’re then going to address - - -

PN318.

MS ZEITZ: The issue of reinstatement.

PN319.

THE SENIOR DEPUTY PRESIDENT: Perhaps we might adjourn at this stage and resume at 2 o’clock.

PN320.

MR REITANO: Could I inquire whether your Honours would intend to sit tomorrow if the matter doesn’t conclude?

PN321.

THE SENIOR DEPUTY PRESIDENT: I’m sorry?

PN322.

MR REITANO: Could I inquire of your Honours whether your Honours would sit tomorrow if the matter doesn’t conclude today?

PN323.

THE SENIOR DEPUTY PRESIDENT: Some of us have another appeal tomorrow. The member of the Bench who doesn’t is the subject of the appeal.

PN324.

MR REITANO: If it pleases. It was just that I was going to reorganise things if that was so.

PN325.

THE SENIOR DEPUTY PRESIDENT: Right. No, we won’t be able to deal further with this appeal tomorrow. Thank you. We’ll adjourn till 2 o’clock.

PN326.

LUNCHEON ADJOURNMENT [12.44 PM]

RESUMED [2.02 PM]

PN327.

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Zeitz.

PN328.

MS ZEITZ: Thank you, your Honour. Prior to the luncheon adjournment I was addressing, amongst other things, the commentary or the evidence that Mr Wilson-Haffenden had given in relation to the issue of the response to the allegations that were made by each of Mr Cannan and Mr Fuller. During the luncheon adjournment I’ve located those extracts, so I’ll just take the Full Bench to them. It commences at page 508 of the transcript. I’ll just run through the particular references. This is in cross-examination. At PN 3572 Mr Reitano suggests that Mr Wilson-Haffenden had already made up his mind about the outcome of the process. Mr Wilson-Haffenden says in response:

PN329.

That’s not true. If you refer back to my email on the 10th it shows that I hadn’t made up my mind. I was actually looking for those people to come in and show cause to say, “Yes, we have learnt. We now understand our behaviours.” What I got at that meeting, Mr Reitano was, “I’ve done nothing wrong. This is it. You’ve got it all wrong and the person is a bully.”

PN330.

That is the person who made the complaint against the people who had identified inappropriate behaviour on behalf of Mr Cannan and Mr Fuller.

PN331.

THE DEPUTY PRESIDENT: I find it a curious concept that somebody has to show cause why they shouldn’t be dismissed and whether or not that constitutes a pre-existing decision.

PN332.

MS ZEITZ: It is an interesting concept, your Honour.

PN333.

THE DEPUTY PRESIDENT: Yes.

PN334.

MS ZEITZ: It was the process that was undertaken and it was undertaken because - - -

PN335.

THE DEPUTY PRESIDENT: No, it’s not novel; I’ve seen it a long time. It just creates an interesting concept. It seems to suggest that a decision has prima facie been made and it’s up to the receiver of that communication to persuade the decision-maker to a contrary conclusion.

PN336.

MS ZEITZ: If I were to put on an alternative hat that I occasionally wear, my experience is that this is an approach that has more currency in the public sector.

PN337.

THE DEPUTY PRESIDENT: Yes.

PN338.

MS ZEITZ: It is frequently used as a series - part of their rather complicated and complex approach. I suspect it has found its way into elements of the private sector without the consideration that you’ve quite rightly identified.

PN339.

THE DEPUTY PRESIDENT: Yes.

PN340.

MS ZEITZ: What is clear is that Mr Wilson-Haffenden’s evidence was that he hadn’t reached a final conclusion. This goes on, and it extends over several pages, so I’ll just go to the references. The next reference is at page 513. This is at PN 3634, prior to the - he’d asked whether or not Mr Fuller or Mr Cannan about being sorry. I think there was a full (indistinct) about it once:

PN341.

I think Mr Cannan in his response said, “I didn’t do it. The person’s got it all wrong.” They were some of the questions I was looking to ask which was what have they learnt. Mr Reeves actually took over the show cause meeting, so he really ran that. So we were looking to do that, but, again, Mr Cannan’s response was, “I haven’t done anything wrong.” I’d assume he has nothing to be sorry for if he doesn’t realise that his behaviour was not appropriate.

PN342.

Then at 3635, this refers to an email:

PN343.

The key things – I go back to my notes from that meeting – I think Mr Reeves would have opened the session saying, “We’re here to tell you two things.”

PN344.

The handwritten notes set that out and they’ve been tendered there in evidence. At page 515, PN 3647 he says:

PN345.

I took the view that from Mr Cannan’s perspective there was no recognition or acknowledgement that his behaviour may have been inappropriate in any way, shape or form.

PN346.

He then says – there’s quite an exchange – at pages 519 to 520 at PN 3690:

PN347.

I asked Mr Cannan and Mr Fuller to show cause. Neither had said to me at any time, “Our behaviour’s been inappropriate. If we have bullied or harassed somebody, we’re sorry.” That was never put.

PN348.

Then he was asked if that had been put would that have changed his mind. At 3691:

PN349.

I would have considered it within a broader context of what Mr Fuller had just said. I didn’t have any intention to do that. I would have expected other things.

PN350.

So what had been put is that Mr Fuller had said, “I had no intention of bullying or harassing.” So in response to that, Mr Wilson-Haffenden said:

PN351.

I would have considered it within a broader context of what Mr Fuller had said. I would have expected other things – that is, I recognise my behaviours were wrong, I recognise his behaviour was inappropriate.

PN352.

There’s a further exchange at 3693. Mr Wilson-Haffenden says he would have taken it into consideration. He says at 3694:

PN353.

Certainly we talked around whether we would put the employees into other areas of the plant.

PN354.

Then he was asked at 3702 if he took into account the age and years of service of Mr Cannan. He said:

PN355.

Yes, I certainly considered that in the decision.

PN356.

So the issue I addressed before lunch of the question of the extent to which it is said by the appellant that reliance by her Honour on a finding that the appellant craved contrition is not a complete answer to what was actually being sought and, indeed, what was being sought was a recognition of the need to behave appropriately. As I said before lunch, that doesn’t require necessarily contrition.

PN357.

The decision being appealed from, there is a live issue about which is actually the decision under appeal because the question does arise about whether the changes that were made by the Deputy President to her first-issued decision were of substance or came under – we say they were valid substance. To that extent, that does not materially affect the submissions. Her decision was, on the first occasion, that she would order re-employment to another position on terms and conditions no less favourable than those held at the time of dismissal and that re‑employment would not entail working in D-panel casting.

PN358.

In short, when it comes to remedy, in our submission, the fundamental flaws in her reasoning process, which I’ve already taken the Full Commission to – are the failure to give any or sufficient reasons regarding her preference of the evidence of the applicants and their supporting evidence almost to the entire exclusion of the evidence of the witnesses for the appellant; the failure to articulate which standard of proof she was applying; the failure to articulate who had the burden of proof and who she was ascribing responsibility for in the process for the burden of proof; the incorrect characterisation of the nature of termination which she found to be a summary dismissal – I’ll address that further in a moment - the nature of her apparent finding that engaging in action that was industrial relations in character or industrial activity in character was somehow sacrosanct and could not be the subject of a finding of bullying behaviour - and that goes to the interaction of her finding with the evidence of Mr Fraraccio, in particular, as supported by others who gave contemporaneous evidence and accounts; and the finding that it was reasonable, there was a valid reason to terminate based on bullying behaviour.

PN359.

She then goes to process. There is nothing in the material. What she actually finds is that the process was flawed. That’s at 243 and 244 of her decision. “Flawed”, in my submission, does not mean “absent”. I’ll come to what we say about that in a moment, but she says the omission in relation to putting the 12 statements renders the termination process procedurally unfair. The failure to mention the 12 statements amounted to procedural error. That’s at 244. However, when she comes to make a finding about the matters she takes into account in terming whether the finding is harsh, she finds that there was a denial of procedural fairness. In my view, there’s simply no support for that on the evidence. There was a process. Allegations were put, and she has found that there was a flawed process, but she has at no stage found that a procedure was denied. In fact, what is established is that there was integral involvement by the CFMEU on behalf of its members throughout the process.

PN360.

What is not considered by her, and we say is relevant, is where did the failure of process lead if, in fact, there was a failure or a flaw? What we have as clear evidence is that all allegations were denied. Had further allegations been put, there is nothing to suggest that they would not similarly have been denied. I invite the Full Bench to consider the responses of Mr Cannan and Mr Fuller to issues that were raised with them in cross-examination about their reaction to various matters during the course of their employment.

PN361.

While they may have indicated that they had no intention of engaging in bullying or similar misconduct, that is not consistent with what their behaviour actually disclosed and what their own evidence was of the way in which they continued to raise issues. I won’t go back to that; I’ve already addressed how that impacted and was experienced by others.

PN362.

The reparation or the insertion of a "perfect" procedural process would not inevitably, in our submission, have led to an outcome where either of the individuals the subject of these proceedings acknowledged that their behaviour was inappropriate. I’ve already addressed the issue of the role of representatives in that and the interactions between Mr Wilson-Haffenden and Mr Washington.

PN363.

What was incontrovertible in the appellant’s case was that it considered that the matters that were taken forward that there had been bullying conduct with respect to Mr Fraraccio. As I’ve already indicated, that aspect of the process was put fairly and squarely to each of these individuals and they had their opportunity to respond, and they denied.

PN364.

As I indicated before lunch, despite having access to all of the material ahead of filing their own, no indication in any of the material filed that, having examined the material filed by the appellant, any of the outcomes or consequences of their behaviour were matters of regret or remorse and nothing in their filed material which did other than deny the conduct that was actually alleged. They’ve maintained the denial throughout.

PN365.

The appellant submits that it’s been denied natural justice because there is an inadequacy and insufficiency of reasons provided. It would appear that the appellant’s witnesses were regarded as either unreliable or not to be believed because there has been no finding as to why the evidence of those witnesses has been rejected. In particular, the finding of summary dismissal is a clear error of law. The reason that is significant is because it is the conclusion that the Deputy President reaches in determining that the dismissals were harsh. This is at 268.

PN366.

She takes three elements which are all relevant to the applicants – years of service, ages at the time of dismissal and family dependent responsibilities, presumably all locked in under section 387(1)(h) as the “other matters” to take into account and gave those weight having found that there was a valid reason for termination. So she says, “Okay, here’s the other side of the scale – years of service, family dependent responsibilities, ages at the time of dismissal.” She then says, “Oh, there was a denial of procedural fairness in effecting the dismissal.” That is not consistent with her earlier finding, and I’ve referred to that at 243 and 244. “Denial” is different to “flawed”.

PN367.

She then says, “Findings of the condonation by Nyrstar and lack of managing behaviour”. Nyrstar never walked away from the fact that it was not well managed. It also said at all times and continues to say how difficult it is to manage bullying behaviour in the workplace, particularly when it’s running under the auspices of alleged industrial disputation, or I should say industrial issues, and particularly when the individuals concerned, when a formal attempt was made by Mr Fraraccio to start to impose some measures for behaviours – that’s Mr Fraraccio’s evidence; it’s quite clear that he spoke to both of them about their behaviours – that was suddenly bullying behaviour.

PN368.

On that basis, we say that the conclusion as to merits is correct when it came to the question of there being valid reason but that the weight that the Deputy President attached to the other matters set out in that paragraph was, in the case of the personal matters, excessive, taking into account the circumstances and the context, that the findings were related to condonation and a lack of managing behaviour – I’ve already addressed how they really are one set and they're rejected by the appellant – and her conclusion is that it didn’t justify summary dismissal. One presumes, therefore, that it justified dismissal with notice, because she’s relying on the fact of the summary nature of the dismissal was to determine that the dismissals were harsh, and she is taking into account those other matters in the context of saying, “This doesn’t justify summary dismissal.” Well, it wasn’t. Fundamental error.

PN369.

We say and submit that at that point the decision should have been the conduct justified dismissal, taking into account all of the matters. Yes, the procedure wasn’t perfect et cetera, et cetera, but the conduct justified the dismissal. Or, in the alternative, if it didn’t justify dismissal – I’ll come to this – it certainly didn’t justify re-employment.

PN370.

Age, years of service and family dependents only get you so far when you’ve behaved in the way that these employees were found by the Deputy President to have behaved. The question that she has said is, “Well, look, that’s fine, but if I take into account denial of procedural fairness, condonation, lack of managing behaviour, that sits on this side of the ledger and it doesn’t take away the severity of the summary nature of the dismissal.” Well, take out “summary”, and it’s a different answer, in our submission.

PN371.

The Deputy President then goes on to address reinstatement as the primary remedy. She relies on Perkins at 273. I simply note that what she didn’t address was the effect of putting these employees back into a workplace where people who had been subjected to their behaviour continued to work. The evidence she had before her was that there are a number of those employees now working across the plant. That was their evidence; they’re working in different departments, areas. It’s one thing to say the employer can behave like the HR department and the senior management can behave a certain way and manage these things. This was a case of bullying behaviour. The Commission is well aware of the orders that the bullying jurisdiction permits because of the personal nature of bullying behaviour.

PN372.

That is not addressed, and we say that is certainly an issue that enlivens the public interest. At what point when you’re dealing with bullying matters does the consideration beyond re-establishing the employment relationship actually go to the capacity to re-establish workplace relationships, because that’s what was here. That has not been addressed.

PN373.

The Deputy President then goes on to conclude, commencing at 276, whether reinstatement is appropriate. She correctly identifies that there’s no outstanding performance issues that would otherwise warrant further termination. She then finds that, having regard to the contrition expressed, she is satisfied about their conduct and they are capable of change. I’ve addressed earlier before lunch – and I won’t go into detail – that certainly with respect to Mr Fuller, that is simply not open on the evidence that was before her. With Mr Cannan, his opportunity occurred in cross-examination. Good luck to him for putting it forward in that context. Hadn’t said boo to a goose about it before that point.

PN374.

In our submission, it doesn’t get to that point if your primary submission is accepted that the decision of the Deputy President was, in effect, that the conduct did not justify summary dismissal. That being wrong, the conduct certainly, in our submission, was sufficient to warrant termination of employment. None of the factors that have been identified would outweigh the operation of that, particularly in circumstances which, as I referred to before lunch, there has been an impact from that behaviour across the workplace that goes beyond what one might normally term the usual misconduct issues that can arise.

PN375.

The denial of natural justice, we say, was also compounded by the subsequent decision of her Honour with respect to remedy. I’ve already referred to that, but I just note that it is remarkable that where written submissions are requested from parties, and the party that would be expected to have the most accurate figures regarding the loss of earnings and the employees are at odds on those figures, that no inquiry is made to try and clarify that, but the employees’ figures are accepted without question. We say the reason that the employees’ figures were accepted without question was because her Honour was still operating on the basis it was a summary dismissal. That’s where the difference in the figures lies.

PN376.

The Deputy President’s decision changed to one about she had concluded that reinstatement was appropriate. We say that that second decision is flawed simply because it was issued subsequent to the first. It doesn’t survive the slip rule, it's a substantial change and should not be had regard to. To the extent it is, we simply say that the further submissions and the further decision, as I have said, confirm the denial of natural justice and are also simply wrong, both on the figures and on the basis of the calculation set out in that section.

PN377.

The order to restore lost payments, this is just referencing the decision, it’s found at 127(c) and (d). As I said earlier, the 50 per cent must relate to actual loss, and they were paid their payment of notice.

PN378.

The orders that the appellant seeks are that the finding that the dismissal was harsh be quashed and that a decision be issued that there was a valid reason for termination of employment and in all the circumstances neither reinstatement nor re-employment – depending on which decision is referred to – is warranted. We note that if there were shortcomings in process, they were capable of being addressed in compensation and not in reinstatement or re-employment.

PN379.

Unless there’s anything further, I’ve completed.

PN380.

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Zeitz. Mr Reitano.

PN381.

MR REITANO: If it please the Commission, one of the important factors where we stand a long way from each other in relation to the matters that have been agitated this afternoon and this morning by my learned friend relates to the fundamental basis for the dismissal and, in particular, the matters that were required to be considered by Wells DP as matters of what might generally be known as substantive fairness.

PN382.

I think time after time after time perhaps other than in the instance of Mr McCullum, which I’ll put to one side, the Full Bench was only appraised of in the most general terms allegations of bullying. I’m sorry, there was one other specific allegation, and that was the wrongly put allegation that Mr Cannan was sacked. Part of his bullying comprised of him staring at Mr Fraraccio. Indeed, the evidence and the allegation to the extent that it was developed in the material was to the reverse – that is, that he never looked at Mr Fraraccio and that that constituted the bullying, which Mr Cannan explained in his evidence was the way in which he dealt with people at pre-start meetings and it was his way of concentrating on what was being said to him at those meetings – by looking down at the floor and listening carefully to what he was told. No one for one moment doubted that that is what Mr Cannan did because he actively participated in the meetings. One of the allegations against him was that he said things during the course of meetings, that he asked questions, that he made complaints and the like.

PN383.

One of the problems with the way in which my learned friend has been – I used the word very carefully – “unfair” to Wells DP is in the selective quotation of material from the transcript and evidence, in selective quotation from passages of the decision and in a complete and utter failure to appraise the Full Bench of what the issues were in respect of allegations against Cannan and Fuller. So I need to go back to some of that material immediately, because it will illustrate precisely what the issues were.

PN384.

There was no grand issue, as my learned friend puts, of bullying. Right at the outset, before lawyers became involved, what was sought from Nyrstar in respect of its reverse bullying investigation was particulars of the particular allegations, “Give us specifics.” So right at the beginning the framework of what the employees were dealing with in terms of what they were required to respond to was defined in specific and careful terms. I’ll come to the document in a moment. That does that. I need to come to the evolution of the document.

PN385.

What occurred was historically Mr Simmonds, Nyrstar’s appointed investigator, investigated a whole series of specific allegations. Some he found proven, some he found not proven. The next step in the process was the show cause letter, as curious as the concept is. In that show cause letter, “You, Mr Cannan,” or “You, Mr Fuller” – they’re identical letters in form respects – “are required to show cause as to why your employment should not be terminated on the basis of allegations that were sustained or found to be proven by Mr Simmonds. You need to deal with those allegations. They’re the basis on which we’re going to terminate your employment, and you need to answer them.” Each of them did. That was the next step.

PN386.

They answered those allegations that were found proven against them; they didn’t answer others. Mr Wilson-Haffenden, Ms Zeitz and others would have it that there were other things relied on to dismiss them, such as the conversation that was alleged to have been had between Mr Wilson-Haffenden and Mr Washington. We adopt what the Presiding Member said – what was the allegation? What were the specifics? It wasn’t for us to ascertain from the mind of Nyrstar what it was relying on; it was for Nyrstar to accord procedural fairness.

PN387.

They didn’t tell Mr Washington in 2013, they didn’t tell Mr Cannan and Mr Fuller what that material was. They didn’t tell Wells DP about that in 2014, and when Watson SDP, with respect, asked the question this morning, they didn’t tell him either. All it was was, “We have this other information that we will be relying on or that when relied on.” But there was no articulation of what that was. That is very surprising given the precise articulation of the allegations that were sought and obtained at the outset.

PN388.

I first need to go to that history. We starkly depart from my learned friend at the point at which the investigation commenced – that is, whether it be relevant or not, before then when the allegation was made against Mr Fraraccio for bullying, be that as it may. But from that point on, in terms of the background to the case, there is a stark departure between what my learned friend puts, what Wells DP considered and what we were dealing with.

PN389.

Could I first go to in the development of what occurred – there are four documents I need to turn to – the first is found in volume 3 of 4. I should say, I don’t intend to go both to Cannan and Mr Fuller’s respective documents because, as I say, in formal respects they are exactly the same. I will just go to one or other of them in making the submission.

PN390.

At page 1961, this letter, as it were, kicks off the process. It’s dated 13 August 2013. In the first part of the letter, there is effectively the dismissal of the allegations against Mr Fraraccio. Then in the middle of the letter, the fourth paragraph:

PN391.

The investigation has identified two areas of concern. Firstly, the information presented indicates that you and other members of D-panel may have been actively and knowingly engaged in behaviour designed to discredit and prejudice your team leader in his employment - - -

PN392.

I won’t read the rest of the paragraph. The next paragraph:

PN393.

Secondly, the investigation has raised serious concerns with the company that D-panel appears to be highly dysfunctional.

PN394.

I won’t read the rest of the paragraph. If you go over the page. It then says, “These are serious matters. You will be stood down on full pay and there will be an investigation,” in summary.

PN395.

The matter is then taken to the Commission, as my learned friend indicated. As a result of that, it is agreed that particulars will be provided of the allegations. If I could go to 1995 of the same volume, you will see there what is set out in the third paragraph, or the second paragraph:

PN396.

In addition to the allegations already put to you, we confirm that we are also investigating the following: instances where collectively or individually you were involved in behaviours which were intended to undermine the team leader and directly or indirectly obstruct or hinder him in the performance of his duties. On the basis of the information available –

PN397.

Then there are three matters set out, three allegations. They’re all allegations directed at alleged behaviour directed at Mr Fraraccio. Then it says:

PN398.

The investigation into the allegation that the team leader on D-panel casting was engaged in bullying and harassing behaviour also resulted in matters being identified that raised a question about whether you and others within the panel engaged in conduct intended to –

PN399.

Then there is a series of words about encouragement, intimidating, pressure or coercing. In the last paragraph:

PN400.

The investigation also disclosed that during several of the occasions when it was alleged that you engaged in the conduct set out above, your behaviour was intended to have a particular effect.

PN401.

Over the page, there is a reference to how the investigation will proceed:

PN402.

The investigation process will examine all aspects of the matters set out in this correspondence, information collated for the previous investigation revealed a group of individuals, of which you were one, who are constantly negative towards individuals who are in a leadership role and any suggested change to work practices. This investigation will be carried out in accordance with a particular procedure. The initial phase of this investigation is focused on gathering information specifically focused on the allegations listed above and in our previous correspondence to you information will consist mainly of individual statements and any other information the company believes is relevant. Once this process is completed, the company will then present to you particulars of each allegation that may be identified during this process that are applicable to you.

PN403.

Then the letter goes on about there’ll have an opportunity to provide a formal response. To that end, Mr Simmonds was engaged to conduct the investigation, and you will see at the next reference – I need to give both – contained in volume 2 of 4 on the page 1648. Unfortunately I’m going to have to come back to volume 3 that I was just dealing with.

PN404.

As I said, I’m not going to go to both employees in respect of letters that are the same, but there is a similar letter in respect of Mr Cannan, and that letter to Mr Fuller dated 18 September says:

PN405.

I refer to my previous correspondence dated 13 of 30 August. At a recent Fair Work Commission conference we agreed to engage ex-commissioner Jim Simmonds to undertake the investigation on behalf of the company into the allegations directed at you. The available information has been reviewed by Mr Simmonds and in some cases he has obtained further information. The attached general and specific allegations with supporting information are put to you for response. Mr Simmonds will arrange a meeting with you to obtain your response on these allegations. He will then report back to the company and the company will determine what if any actions will be arising.

PN406.

Then if you go over the page, you’ll find some general material on pages 1650 and 1651 that I won’t trouble the Full Bench with. But if you go to 1652, you will find at the top of the page a heading, “Allegations”, and there is listed what are the three general allegations. The closest you’ll get to the type of stuff that my learned friend has been referring to in terms of general bullying against people is allegation number 3, general allegation:

PN407.

It is further alleged that the conduct engaged in by you was part of an ongoing pattern of behaviour or course of conduct engaged in by either individually or in concert with others that was directed and intended and did have the effect of undermining, humiliating, embarrassing, harassing and/or distressing team leaders of D-panel and other employees and contractors working on D-panel and the performance of their duties including but not limited to –

PN408.

Then there are four people named. I indicate just while I’m there in passing that Mr Phillips, who was called to give evidence, ran a mile from the suggestion that he was ever subject of those things from either Mr Cannan or Mr Fuller. In his evidence he recanted what he’d said in the statement and said, “No, I was never bullied by them, ever. Ever, ever, ever.” I just mention that in passing because it was not something that came out in my friend’s submissions this morning in respect to Mr Fuller.

PN409.

Mr Seabourne – I’ll take you to his cross-examination – was the gentleman who had suicidal thoughts. Some of his evidence is very inconsistent with him pointing his finger either at Mr Cannan or Mr Fuller. I think he’d have a beer with them, from recollection, and he never had any real concerns about them. The others had varyingly different things to say, which I will come to.

PN410.

You will then see Mr Fuller’s case that there are specific allegations – I think nine of them – put over the next I think four pages, very precise and particular in terms of what they allege. I hope I don’t have to labour the point – they are clearly very particular. If you look at the first one:

PN411.

On 19 January you were involved in bullying or attempting to bully Peter McCullum and seeking to undermine the authority of the team leader Fraraccio.

PN412.

Again, because I’m there, I will deal with it. The evidence in relation to the McCullum incident was a statement in an email from someone from the company to Mr Simmonds saying,” I’ve spoken to McCullum and he says he wasn’t bullied.” That evidence was tendered. It went in, her Honour considered it. But it didn’t stop there. It’s as though Mr Fuller doesn’t exist in my learned friend’s submissions, because Mr Fuller gave evidence and said, “No, I didn’t bully him. I spoke to him about the question of rotation. I explained to him what our position was about it.” He frankly conceded that. So you had that evidence as well.

PN413.

Mr Fraraccio, the highest his evidence got – at least his oral evidence – was, “I saw a conversation taking place where people looked I think animated or people were explaining their positions backward and forwards.” That’s as high as it got. Simmonds found it proven essentially on that basis. It’s little wonder that her Honour disagreed with the finding. But you will see it’s a very precise allegation that Mr Fuller was asked to meet.

PN414.

You will see in respect of the second allegation:

PN415.

On 25 January in the presence of Fraraccio you said to other work colleagues referencing or apparently referencing either Josh Fraraccio or Nyrstar, generally words to the effect, “They are fucked in the head.”

PN416.

Simmonds found, I think from recollection, that allegation not proven. I think he found the words had been said but he didn’t think that they were directed in the way that the allegation specified.

PN417.

You will see in the next allegation:

PN418.

On 28 January you approached Fraraccio about staffing levels following the pre-start meeting and asserted that he was acting in breach of the EBA. It alleged that this issue was raised and pursued by you in order to undermine, bully him and demonstrate that you do not respect his views, accept his responses to matters raised or will comply with directions or instructions given by him to you.

PN419.

Do you see anything in that allegation that even remotely approaches what my learned friend says the allegation of bullying was – that is, the way in way things were said. There is nothing at all in that allegation and, as I recall, in other allegations. The worst it gets for Mr Fuller is that he had an issue with swearing, which I think he conceded in his evidence.

PN420.

But in terms of him pursuing industrial concerns on 28 January, the allegation was not to do with the way in which it was delivered; it was to do with the fact that he raised it. Her Honour found that that was reasonable – that he genuinely believed it, that what he was doing was right, that it was a concern that had been raised and he was pursuing that. It had nothing to do with what my learned friend said – that is, the way in which it was delivered.

PN421.

If you go over the page:

PN422.

On 5 February 2013 you engaged in bullying behaviour towards a contractor, Steven Dodge.

PN423.

This turned on the rather nice issue about whether Mr Fuller swore at Mr Dodge or Mr Fuller referred to Mr Dodge using the words “fucking idiot”. And there was an issue about it. But it was one precise allegation on one precise day. Again, if you look at allegation number 5, a precise allegation on a particular day. I can go through them all in respect of both employees.

PN424.

Mr Cannan’s allegations are found at 1667 and following. My recollection is – I should have checked it over the luncheon adjournment – you won’t find anything in any of the allegations about him staring at people. You won’t find anything specific or particularised about that type of behaviour, an example my learned friend referred to this morning. You will find a repetition of the McCullum incidents and Mr Cannan’s alleged involvement in that.

PN425.

You’ll find that because on one day I think he said the words, “You’re bloody joking,” to someone when he was asked to do something, that was something that was described as inappropriate, the type of thing that one imagines that people say to each other all the time in a workplace like this. You will find that there is something about his delivery, something alleged about his delivery. I think it’s said that he snarled. So you do see in that allegation some reference to the way in which the words are delivered, but you don’t see it in most of the others, and you certainly don’t see it generally alleged.

PN426.

All of his allegations as well related to specific incidents on specific days. Could I note allegation number 6 in his case on 1672:

PN427.

On 5 June you behaved inappropriately to process leader Steven Phillips.

PN428.

In the face of Mr Phillips’s evidence that he didn’t consider that to be so.

PN429.

Could I then go to the fourth document, because it completes the picture. The fourth document relates to the findings that Mr Simmonds made in respect of each individual. The first one, which relates to Mr Fuller, is found in volume 3 of 4 at 2265. This is the show-cause letter. I note that in the references to the evidence and all the things that were read to the Full Bench by my learned friend, this didn’t rate. This is the show-cause letter. This is, “Here is why I’m going to terminate your employment. Tell me why I shouldn’t.”

PN430.

I make no issue of it. Smith DP’s observation is one that has occurred to me, but I don’t have to win on that point in this case; it’s not what this case is about. This case is about these allegations were put in this letter, 7 October, as “the basis upon which we are proposal to terminate your employment. What do you have to say?” If you go to the letter:

PN431.

On Wednesday, 18 September, I wrote to you outlining specific circumstances about your conduct. On Friday, 20 September, you were interviewed by Simmonds and provided the opportunity to respond to the allegations against you. Simmonds has now completed his investigations. In respect of the specific allegations against you, Simmonds’ findings are as follows –

PN432.

Then it is set out:

PN433.

On four occasions your conduct amounted to bullying or harassment. On seven occasions your conduct amounted to a breach of the Nyrstar code of conduct.

PN434.

It adds up to 11, and it’s more than the allegations, and that’s because some of them were found to constitute both – a breach of the code of conduct and bullying:

PN435.

A copy of Mr Simmonds findings as they relate to you is attached. As previously advised, the company treats all accusation of bullying within the workplace extremely seriously. Bullying is unacceptable and will not be tolerated. The company has carefully considered all of the information available to it and in particular matters identified through the investigation process and the findings of Mr Simmonds. The findings are serious and are capable of being characterised as significant and ongoing misconduct as well as demonstrating a persistent failure or refusal to conduct yourself in compliance with the standard of conduct by the Nyrstar code of conduct. After considering available information, I request you attend a meeting where you are asked to show cause why Nyrstar should not terminate your employment. You’re entitled to bring a representative to that meeting. Please confirm you’re available. Then the company will make a decision.

PN436.

If you then go to what was attached with the letter, P2267 and P2268, you will find the findings in respect of each allegation. The reason that I had to take your Honours and Commissioner to the earlier document is the particulars in terms of each of the allegations are not set out in the findings document. You only see the heading inserted; it doesn’t set out the full particulars in respect of each allegation. But they relevantly match up, except in one or two respects that I’ll indicate presently.

PN437.

You will see that Simmonds goes through and deals with each allegation (1) the allegation about Mr McCullum, and he finds that made out, surprisingly, but he finds that made out. In relation to the second one, on 25 January, comment made to other work colleagues apparently referencing either Fraraccio or Nyrstar generally that they are “fucked in the head”, and he says, “I’m not satisfied the comment amounted to a comment regarding either Fraraccio or the company.” So he finds that not made out.

PN438.

Then 28 January, approached Fraraccio about staffing levels and accusing him of a breach of the EBA, and he finds that made out. He doesn’t find out the way in which it was delivered was in some way inappropriate; he finds out the fact of making that approach and the lodgement of the dispute and then its withdrawal was what constituted the misconduct.

PN439.

Over the page he deals with the alleged behaviour towards Dodge, and he finds that maybe it fell short of bullying because there was no evidence of repetition. But he does find it a breach of the code of conduct or the code and values. Five, disrespectful on 10 April towards Mr Fraraccio. He says he was satisfied that they constituted breaches of both relevant requirements.

PN440.

Seven is the allegation against Phillips, which Phillips himself says that he didn’t find offensive in any way. Eight is this spurious allegation about ringing alarms that my learned friend didn’t mention, but this was said to be the help alarms that were on the factory floor that the employees had to call their team leader or supervisor to come and assist. The evidence was that people working on this panel and on this shift rang them more than others and that was apparently to be attributed to Mr Cannan and Mr Fuller.

PN441.

Of course, in all of the evidence – I’ll deal with it in a moment – you will see a lot of attribution to Fuller and Cannan of what happened on this panel when there was no direct evidence that it was because of them. Nowhere was this more starkly illustrated that in respect of the alarms. If the alarms rang too much, it was because of Cannan and Fuller and no-one else. There was no evidence that would support that at all. Indeed, the evidence was all to the contrary.

PN442.

Then in nine– I put this to one side because I said this dealt with all the specific allegations, nine deals with what I described as general allegation 3 when I went to earlier document at Appeal Book 1669. It says this:

PN443.

The specific allegations apart from the final one were denied. In view of the absence of more precise dates and times and contemporaneous notes regarding these matters, I am unable to be satisfied that they occurred. The allegation concerning the comments made in or about May 2013 are made out. Fuller had some months before been advised that it was not part of the team leader’s role to be involved in production activities, but despite this advice, he sought to involve him in such activities. In the circumstances, a pre-start meeting in front of the other team members, this amounted to humiliation and undermining and was a clear breach of the Nyrstar code of conduct and values.

PN444.

He does not find allegation number 3, which involves bullying a series of named team leaders, made out. Simmonds doesn’t go near that, therefore, the show-cause letter doesn’t seek a response to that allegation. Indeed, Mr Fuller is not asked to respond to any of the general allegations other than to the extent that nine somehow incorporates an aspect of them.

PN445.

There’s no general allegation of bullying. The painted – and I think it is accurate and I think it is fair - by my learned friend’s submissions that that’s what this case before her Honour was about, some general bullying case that involved unspecified incidents over ancient history for a very long time, that involved raising allegations about industrial matters using an inappropriate tone or voice or demeanour or in an inappropriate or what was described as a negative way at one stage, that is not what this case was about. This case was about properly viewed these specific allegations, and that’s what her Honour’s attention was directed towards considering.

PN446.

There was a side show going on that was being pressed by wheeling along a large number of employees hopefully to say bad things about Mr Fuller and Mr Cannan, but many of them, when challenged – and challenged, I have to say in the most courteous and nicest possible way – indicated – I’m sorry, I note that Smith DP smiles. I actually mean that; I wasn’t trying to be funny. They didn’t need to be provoked much to tell you the truth of the matter. Mr Seabourne was delightful in terms of his responses to his relationship many years ago as a team leader with Mr Cannan and Mr Fuller. Mr Seabourne had no reluctance in saying good things about them. I’ll come to some of this in a minute.

PN447.

This case was about these specific allegations and these 12 other statements that were never shown to them and never articulated and never specified other than in some obscure reference in a whisper to Mr Washington. That’s what the case was about, and it is entirely unfair for my learned friend to criticise her Honour for the way in which she dealt with the allegations that were made.

PN448.

There was no evidence that would support some ongoing general behaviour historically since I think the year 2000 of bullying on behalf of either Mr Fuller or Mr Cannan.

PN449.

I just quickly go to Mr Cannan’s document, if I can call it that, his show cause letter. His letter is found at 2274. I should say, one interesting thing quite apart from the Deputy President’s observation about this letter is it leaves to the workers to work out or their representatives to work out which allegations are the ones that have been found proven. They have to actually go and read them and work out, “Oh, that’s one that I was found proven of.” They just tell you generally in the letter at 2274 that there were two occasions where “your conduct amounted to bullying. There were four occasions where your conduct amounted to a breach of the code of business conduct and values.”

PN450.

Mr Cannan, likewise, is asked to respond to these allegations, to put why his employment should not be terminated. Again, you will see that in the first six allegations there are six precise dates and six precise events. Again, they relate back to what you will find in the document at P1669 and following. They just don’t incorporate all of the particulars.

PN451.

You will see in the second sentence of the first allegation:

PN452.

In view of the fact that the file note is more or less contemporaneous and there is no reason to believe that Fraraccio is not honest, I consider that the allegation is substantiated.

PN453.

Well, it may have been Mr Fraraccio’s honest perception that that occurred, but the file note does not make his evidence one way or the other more believable in circumstances where it’s not corroborated. His perception at the time may be as wrong as his recollection now about what happened. The file note gives it no more voracity one way or the other. It is no reason why you would reject out of hand Mr Cannan’s denial. “I didn’t moan and hiss.” And he was adamant about that. That was something he did not do.

PN454.

It makes it no less believable or no more believable in circumstances where Mr Cannan says, “Well, I’ve got a file note or a diary note.” His denial is his denial. His perception of what occurred at the time as recorded in any file note doesn’t make it better or worse. In any event, I think the allegation was found proven by both her Honour and Mr Simmonds.

PN455.

You will then see the next allegation about the approach to Mr McCullum, and there’s nothing to support the allegation in respect of Mr Cannan about that allegation. Surprising, because, in our submission, there’s nothing to support the allegation at all against either, but, certainly, that’s one that Mr Cannan is exonerated on.

PN456.

You will then see his reaction to his team leader raising a safety issue was disrespectful, inappropriate and belittling. I’ll come back to that. That’s one that’s found proven. You’ll see in five there is one that is interesting: on 10 April he made negative comments regarding the acting process leader, Mr King. Mr Cannan – again, the high point in terms of my learned friend’s misstatement of the evidence – far from denying what happened admitted it. For the most part, every aspect of that allegation was common ground, and Mr Cannan said, “I realised at the time that I might have said something that was” – I don’t think he used this word, but it will do – “offensive to Mr King and I went and explained to him why I’d said what I said. I didn’t intend to be offensive towards him. There was a reason why I was saying it.”

PN457.

I’ll come to blanket denials in a moment, but that conveniently introduces the topic. You’ll see, then, there’s an allegation at six, because Mr Cannan swore, that was inappropriately dealing with Mr Phillips. Then you’ll find the two allegations, two of the general allegation in respect of ringing alarms, not made out. Then at eight, the unspecified dates confronting sabotage, et cetera, et cetera. I think Mr Simmonds says he can’t find that made out.

PN458.

They’re the allegations that formed the basis for the dismissal, and they’re the allegations that set the challenge for, if you like, ultimately counsel to dismantle and show could not be made out. This is the basis on which substantive fairness was said to arise. “You did these things.”

PN459.

In each case – when I say “each case”, I mean Mr Fuller and Mr Cannan – it is completely misleading to suggest that all there was was a blanket denial. If the words “blanket denial” are intended to convey to your Honours and Commissioner that all they said was, “I did not do it, I deny that happened,” then it is completely misleading. In each case both of them, to the extent that they could remember various events – and in most cases they remembered most of them – both of them gave an explanation on the facts, either where they departed in Mr King’s case, virtually, “I accept everything he says but there’s this other little bit about the conversation I had with him afterwards,” or in other cases where they said, “No, no, no, I didn’t call Mr Dodge a fucking idiot to his face.” One might read parenthetically, “I could have, but I didn’t do that. What I did was I described him to someone else as that fucking idiot, or something like that.”

PN460.

In each case when industrial issues were raised, for example, such as job rotations, they each indicated, “Well, yes, that is something I disagreed with. I raised a dispute about that, and they kept coming after us about job rotations. They kept coming after us about our complaints about the SO2 escaping from the flues, and we stuck to our guns about that.” If the company had a problem, all they had to do was process the dispute and it would have ended up precisely here, perhaps not before a Full Bench, but precisely in the Fair Work Commission under the relevant dispute settling procedure.

PN461.

The complaint was that they stuck to their guns. They explained in their evidence the reason why they continually raised the complaints they did. Both of them raised this, and other employees corroborated it. The reason why they raised complaints over and over and over again was because they’d been told to do that so that management would eventually address the issue. If you raise things and keep raising them, it will eventually be dealt with.

PN462.

There was reference to the way in which things were said. As I said, the way in which Mr Fuller swore at times, something that he frankly conceded in parts of his evidence, that he was prone to swearing. But there was, I think, only one allegation that concerned that against Mr Fuller, and that was in respect, I think, and that concerns Mr Dodge.

PN463.

THE DEPUTY PRESIDENT: Do I follow from that you take issue with the Deputy President’s finding of a valid reason and that there misconduct?

PN464.

MR REITANO: I note that Ms Zeitz laughs. I’m not sure why. We haven’t appealed. There’s a reason why we haven’t appealed, or we haven’t telegraphed any intention to cavil with any findings that her Honour made. We accept that ultimately her Honour had a basis on the level of reasonable to reasonableness on that range for coming to the conclusion that she did. But to the extent that her Honour found misconduct, she certainly didn’t find all of this misconduct made out. She found aspects of it not made out, such as the easy one that rings in my head: the genuineness of raising industrial issues and so on. She found that that could not be made out. McCullum, another one that comes to mind. She found that that one could not be made out. There were aspects of other ones.

PN465.

The one thing that I can safely say and which we would cavil with, she certainly didn’t find the case that my learned friend that presented to the Full Bench this morning about large-scale bullying over I think about a 15-year period or a 12‑year period of the kind of seriousness that my learned friend put forward. This was not and never was – and no-one could make out that it was – the kind of serious case of bullying that Ms Zeitz put to her Honour and puts here. That’s why it’s not surprising that her Honour came to the view that Nyrstar’s inaction was something that contributed to the conduct continuing, and it’s why her Honour found that they were capable of change, in my respectful submission.

PN466.

I’ll come to the paragraph in the decision. What then happened, once these allegations were answered, Mr Wilson-Haffenden climbs in the witness box and is being cross-examined about this and he said, “Oh, no, we relied on other things. We relied on some of the allegations where Simmonds said that they weren’t made out, we didn’t agree with that, and we relied on those things. And the 12 statements that I gave the whisper to Washo about, yeah, we relied on some of the material in there, and we relied upon their lack of” – I say and Wells DP says – “contrition and, by that, their lack of remorse, their lack of understanding of wrong doing and so on.”

PN467.

When Mr Cannan said – and it was chilling – when Mr Cannan confronted in the witness box went, “Well, yeah, I had no idea that my conduct had that effect on people. My conduct. Not other members of the panel, but my conduct. If I’ve known that, of course I wouldn’t have behaved like that.” They meant it. And that’s why her Honour said that they’re capable of change. That’s why her Honour readily accepted that reinstatement was appropriate, and I use the word quite deliberately in terms of the legislation – appropriate.

PN468.

It is wrong and misleading to say that Mr Fuller had never said sorry. My learned friend, in terms of a whole range of what I will submit are irrelevant matters, says this evidence was unchallenged. I don’t challenge people’s feelings when I’ve got no basis for calling them into question. It’s not appropriate to do so.

PN469.

What was unchallenged was Mr Fuller’s statement in his affidavit at page 1037, paragraph 31, when he said:

PN470.

When I was interviewed by Simmonds, I said I was sorry if anyone was bullied or harassed or intimidated by anything I said or did. I told Simmonds I did not intend that at all.

PN471.

Both employees made it very clear that it was not their intention to in any way bully or harass or intimidate or do anything like that at all.

PN472.

Mr Cannan made it very clear – and I can provide the reference presently, actually – in his evidence during the whole course of his employment he had never had anything brought to his attention that would suggest that his employment was going to be terminated. No one said to him, “If you keep looking at the ground during pre-start meetings, you will be disciplined.” No-one said that. He was left to believe that that was an appropriate way for him to listen to what was going on at pre-start meetings. We might not all do it. The number of times this morning I was looking down at the Bar table while submissions were being made or the number of times that people look out the window when things are happening in court, we all have different ways of absorbing what’s going on around us. No one for one moment suggested to Mr Cannan if he continued to do that, he would in some way be in trouble.

PN473.

No one suggested to Mr Cannan or Mr Fuller that if they continue to raise industrial issues that they would somehow be in trouble. No-one suggested at all to either of them that if they turned up to work and made the observation when asked how they were that they would be better off if they’d had a longer break that that was inappropriate. Mr Rainbird, I think the most senior person on the floor who was called to give evidence – I’ll come to it when I come to the decision – Mr Rainbird attended many pre-start meetings and witnessed much of the conduct from time to time that was brought in by the back door in respect of pre-start meetings. Mr Rainbird said he’d never raised any of those things and never had caused anyone else to raise those matters.

PN474.

Your Honour’s question is: do we accept her Honour’s findings? Yes, we do. Do we accept the rationale behind them? The valid reason is but one matter that I have to take into consideration, yes, we do. We don’t cavil with it at all. I reckon I’d be pretty hard pressed to do so.

PN475.

Finishing off on this aspect, because it concerns both substantive and procedural fairness – I’ve dealt with the substantive issue – that is these things are the substantive things that were raised that were said to constitute the misconduct that her Honour dealt with.

PN476.

In terms of procedural fairness, it’s fairly obvious that if you’re keeping the allegations that were found not proven by Simmonds as the basis for terminating and not seeking people’s response to it, that it’s unfair, that there’s a procedural deficiency. You can call it flawed, you can call it deficient, you can call it unfair, you can call it a denial of procedural fairness, whatever you want to call it. It’s unfair procedurally to act in that way. If you are going to substitute a finding for what Simmonds found, then you are obliged to tell the person, “Well, Simmonds might have found that, but we’re working on the basis that you did it and what have you got to say?”

PN477.

That was the first of the grounds of procedural unfairness. The second was the 12 statements. I’m not going to repeat what I said earlier. What was in the 12 statements and what they amounted to was never articulated by the company, but we know they relied on them. My learned friend says there’s no obligation to show the evidence. Maybe there’s not; I don’t know. It’s a nice technical debating point as to whether there is. But if you’re going to rely on something that’s in the 12 statements, then you are as a matter of procedural fairness obliged to say what it is.

PN478.

That was the second ground of procedural unfairness. To top it all off, the fact that you didn’t show any contrition or remorse for what you did, well, they were entirely wrong. Fuller had told the investigator, the Nyrstar investigator – it wasn’t on the CFMEU’s payroll, it was on Nyrstar’s – they had the tapes. She says, “Oh, well, you didn’t seriously think they were going to listen to them.” Well, if you’re going to rely on a lack of contrition, you’re obliged to. You’ve got them. Why didn’t you just ask Simmonds, “Did they say anything about whether they intended this outcome? Did they say anything about whether they were sorry about it?”

PN479.

As for their understanding of what they’d done that was wrong, they made it clear – they didn’t intend the outcome – that is, hurting people in some way or being offensive to people, whether it be humiliation, intimidation or whatever it is. But they also gave an explanation for why things occurred, what the rational basis was. It wasn’t as though they were doing these things for sport. They explained, “Look, this is why I kept banging on about rotations. It was an important industrial issue for me.” Or, “This is why Mr Fraraccio might have thought that I was being offensive to him, because I was really frustrated that they were using the wrong safety tape on that day, and, yes, I did say those words. But this is the explanation for why I was in that position.”

PN480.

If you look at their statements in both cases, the evidence of what they said to Wells DP and the Commission, if you look at what they each said when they were dismissed and if you look at when it was agitated a third time with them in cross‑examination, there is a remarkable consistency between the version of events they give for why these events occurred in respect of each of them – that is, they were doing their very best to explain why these things occurred.

PN481.

Dodge, an example I will use. In Dodge’s case, Fuller had told Dodge on very many occasions – and he explained this in his evidence – not to do whatever it was he was doing in the particular way because it hampered Fuller’s work, and he got frustrated with the fact that Dodge had done it yet again. So his reaction, not in calling Dodge a “fucking idiot”, but in using the expression “fucking idiot” to someone, was an outburst of frustration with that process.

PN482.

In the same way, Cannan explained with the safety tape and one of the other incidents that’s referred against him, he explained that he had become so frustrated with it. In respect of the industrial issues, they explained, “Well, yes, I did keep raising those. If people found that offensive, I didn’t intend that, but I raised it because managers had told us to raise things and raise things and raise things.” That was the evidence that they gave.

PN483.

In relation to each of the incidents, they did not understand, because they didn’t intend to damage anyone, that it was wrong. They did not understand in some cases that it had been received in some inappropriate way. Phillips, as I said, who resiled from his evidence about being humiliated or intimidated or anything like that, one of the examples was Fuller using the expression to him in the showers one day, “What’s up your arse?” It may not be the way in which we all speak, but at a workplace where someone says something that indicates that they’re agitated or complaining, it’s not a remarkable concept. If they didn’t want Fuller to say that, or if Mr Phillips didn’t want Fuller to say that, then it was quite an easy thing to say, “Don’t speak to me like that,” or, “Let’s go to HR and deal with it there,” if it needed to be escalated that far.

PN484.

You will find nowhere that any of the complaints that were raised, whether raised by Fraraccio from early January 2013 or any of the previous complaints not dealt with in these allegations, employee after employee after employee did not see any of this conduct so serious as to raise the spectre of disciplinary reaction or to do anything about it. Rainbird didn’t, one of the senior people who was “involved”, nor did any of the other team leaders.

PN485.

Could I then briefly go to the decision, because I quite seriously make the submission that in terms of the way in which the decision has been dealt with, it doesn’t fairly portray to her Honour the way in which she carefully considered the matter.

PN486.

Firstly, it was said that the decision really starts at paragraph 220. Well, that is entirely unfair, and that all that goes on before that is a summary of the evidence and reference to submissions. A fair reading of the decision does not get you there.

PN487.

Could I just deal with some matters to illustrate how her Honour considered some of the evidence in those paragraphs. If one goes to 134 – my pages are slightly different so if I refer to paragraphs rather than appeal book references, that’s why – I think Mr Schultz was one of the team leaders who was called to give some evidence about some matters that he didn’t like. You’ll see there her Honour says:

PN488.

Mr Schultz confirmed that he was old school sorting out the issues on the floor rather than taking it further, that he never investigated disciplinary action against either of the applicants, that he had dealings with Cannan and Fuller when operational mistakes had been made and that in the six years in total he had worked with D-panel he was unaware of any disciplinary action against the applicants. He said he considered bullying was a serious matter which would cause him to take action in the workplace. Mr Schultz’s subsequent evidence about whether he referred allegations of bullying by Cannan and Fuller to his superintendents is less than satisfactory, having contradicted himself on a number of occasions. Mr Schultz said it was unpleasant and he was unhappy working on D-panel.

PN489.

Not unhappy working with Fuller and Cannan. There were 23 people at one stage, I think, working on D-panel.

PN490.

Specifically he said “My superintendent, Craig Wells, asked me to move off D-panel in late 2012. He told me he didn’t want to see me fail and he was concerned for me. I stood down as team leader so I could become process leader on panel D.

PN491.

If you go to 138 – I’m skipping over the two previous paragraphs about Mr Moore:

PN492.

Mr Moore said when he was process leader on D-panel, he did not have any difficulty raising complaints but that nothing occurred that warranted him taking any formal action against Cannan or Fuller. He said he never raised any performance management issues with Cannan or Fuller in relation to D-panel ringing alarms and not troubleshooting, and he was not able to say which operators had rung alarms at the time, although he’d spoken to the then team leader, Mr T Hinds about the matter. Mr T Hinds confirmed that, if necessary, he would have instituted disciplinary action against an employee and that he never had reason to discipline either Cannan or Fuller.

PN493.

Then in 139 her Honour quotes Mr Rainbird:

PN494.

It was Rainbird’s evidence that he’d never witnessed or heard of any bullying behaviour by D-panel members –

PN495.

Which, of course, included Fuller and Cannan –

PN496.

He said D-panel was referred to as the burnout crew and that senior managers expressed concern about running communication sessions with D-panel. In his first statement to Farmer, Rainbird stated, “Craig Wells addressed Fraraccio and myself and others within management in early 2013 and said we must be careful to treat D-panel with respect”. He said he or the company had never raised the issues of crib breaks, rotations, use of the sky walk bridge or the ringing of help alarms as problems with any members of D-panel. In cross-examination the following exchange occurred:

PN497.

In relation to turning up for work and saying “It was too fucking short” or words like that, you never said to them, “I don’t want you saying those words when you turn up to a pre-start meeting” and you never gave them an opportunity to correct their behaviour in this respect?---No, I didn’t.

PN498.

And you didn’t cause anyone else to give them the opportunity? You should have said to Fraraccio or you could have said to HR, or you could have said to someone else, “I want you to go and talk to them and say that to them.” Yes, you didn’t do that?---No, I didn’t.

PN499.

At 126 through to – and I don’t read it to your Honours – 131 her Honour deals with questions of management action or, rather, inaction over matters. You’ll see in paragraph 130 the reference to Mr Seabourne that I was referring to:

PN500.

Mr Seabourne confirmed that Cannan and Fuller had always been courteous and pleasant to him and that they were individuals he’d have a chat with, that personally he got along with them and he had no difficulty raising matters with them. He said if a matter was serious, he would have referred it up the line to be dealt with by the superintendent, Mr Wells, but that he had never had any reason to refer either Cannan or Fuller for disciplinary action.

PN501.

Then there’s an extract from the cross-examination. This is Mr Seabourne who, regrettably, the appellant here, the respondent below, relied on to somehow suggest that Mr Fuller and Mr Cannan were responsible for his suicidal thoughts. With the utmost respect, that is entirely inconsistent with the tenor of his evidence in cross-examination, and the suggestion can’t be made, with respect, it was because of some aggressive attack on his credit or anything like that. If you read the evidence he gave and you read her Honour’s summary, he offered this quite unprovoked, that he had no reason to complain about either of these individuals.

PN502.

While I’m there, I should go to 132. Mr Phillips’ evidence was that he never discussed with Cannan or Fuller any concerns he had with them, not agreeing to make changes, ringing the help alarms, not troubleshooting or swearing in the workplace. There’s a later reference – I wasn’t able to turn it up this morning, but I know it because it’s in my learned friend’s submissions – that Mr Phillips recanted from this statement in respect of “bad things” he had to say about Fuller or Cannan. He totally said, “No, no, no, I’m turning round on that. The remarkable submission is made – put aside unfairness to her Honour below – that her Honour should have had regard to his first go in circumstances where in sworn testimony he said, “No, that’s wrong,” and that her Honour somehow should have relied on what he said the first time when he said some things.

PN503.

Her Honour deals with the evidence and observations about it from an early part in the decision, I think after paragraph 24 where her Honour summarises the various evidence that was given right up to paragraph 220, with observations of the kind I’ve referred to. “This is evidence is important about what Rainbird said.” “As for Seabourne, let me say some things about his evidence and what he said in cross-examination. Let me tell you that I don’t think Schultz can be relied upon because his evidence was unconvincing.” In paragraph 85 there’s a reference to King’s evidence being unsatisfactory on some points.

PN504.

It is entirely wrong to say that all her Honour does in that part of the decision is simply summarise the evidence. Her Honour makes observations about the evidence, points out things that her Honour considers are important. Makes credit findings in respect of aspects of the evidence in the way that it is to be entirely expected.

PN505.

When her Honour comes to deal with the various matters to which section 387 directs attention, there are, as Smith DP has pointed out, a number of findings that are adverse in terms of her Honour says they could have grounded a valid reason. But her Honour carefully considers each of the matters. If you look at paragraph 230 – I almost promise to leave it alone after this – there is reference to the McCullum incident. Her Honour specifically considers that because that was one of the allegations that was raised. I’ve already dealt with how her Honour dealt with that issue, and I’m not going to say it again.

PN506.

In paragraph 231, her Honour says:

PN507.

On the evidence before me, much of which was provided by Nyrstar’s own witness, I am satisfied in raising of workplace disputes by Fuller was in his capacity as union delegate and were raised over concerns that were genuinely heard. Whilst it may be that D-panel raised more disputes than other panels in casting, that in itself does not denote misconduct and was done in accordance with the dispute settlement procedure in the EBA. To the extent that Simmonds found the raising of disputes to amount to misconduct and bullying, he provided no reasons for this in his report and I am of the view that his finding was in error.

PN508.

That’s why you’ll find earlier on in the summary of the evidence her Honour deals with the number of industrial issues. They’re dealt with from about paragraph 39 through to I think paragraph 60. It was the raising of the disputes that necessarily arose from the allegations, not the simple fact of the way in which they were raised, as my learned friend casts it. That is why her Honour says, “Look, these were genuine concerns. I think they were genuine. Fuller was raising them because he was the union delegate.”

PN509.

You will see, then, in paragraph 232 her Honour deals with the incidents involving Phillips and Dodge, again, because they were specific allegations found in the material. Her Honour says:

PN510.

In relation to the findings made against Fuller on the use of swearing involving Dodge and use of inappropriate language with Phillips, neither of these matters could be said to be bullying as they’re one-off incidents and do not amount to repeated behaviour against those individuals. The incident involving Fuller suggesting that Fraraccio could weigh product on B scales does, in my opinion, show a lack of understanding as to Fraraccio’s role and displayed a lack of respect to Fraraccio but was not dealt with at the time. I consider all of these behaviours to be breach of Nyrstar’s code of business conduct which requires employees to act with courtesy, fairness, dignity and respect.

PN511.

They didn’t amount to bullying; they did amount to misconduct because they were in breach of the relevant requirement – that is, the specific incident in respect of Dodge, the specific incident in respect of Phillips and the specific incident in respect of Fraraccio. Her Honour then does the same thing with Mr Cannan at 233 through to 236. I’ll come to it in a minute, but it is relevant that in each case her Honour deals with it that it was not made out on the evidence.

PN512.

Her Honour then deals with the material that was introduced by the 12 statements, not subject to the specific allegations but related to either the general allegation against team leaders or was material otherwise introduced on the 12 statements. Her Honour says:

PN513.

As to the historic allegations –

PN514.

could I just freeze there and remind your Honours, the historic allegations start in 2000. The first matter that’s raised is 2000 or 2001. I can’t remember what it was because it was so insignificant, but when her Honour refers to that, that appears to be when it starts –

PN515.

made by previous management of D-panel involving inappropriate behaviour by D-panel members, I have found this evidence the most difficult to reconcile. Firstly, many of the allegations did not specifically identify an employee instead of referring to D-panel generally, and the evidence bore that out. Secondly, the allegations stretch back to 1999-2000 at a time when there with some 24 employees on D-panel. Over a long period of time when there were many employees. Thirdly, whilst a number of previous D-panel management described working in D-panel as being harmful to their health and family life, they did not consider that any of the conduct of Fuller, Cannan or other D-panel members serious enough to take any action.

PN516.

So they never went and said, “Do something about this,” or they never did something themselves about it.

PN517.

Further, a number of these same witnesses described Fuller and Cannan as easy to get along with -

PN518.

I referred I think earlier to the observations about Mr Seabourne’s evidence –

PN519.

However, based on the unchallenged evidence of Nyrstar witnesses as to how they felt working with D-panel and some of the historic but specific behaviours that were attributed to Cannan and Fuller in pre-start meetings and on the balance of probabilities –

PN520.

my friend poses the issue that her Honour didn’t deal with the question of onus. Her Honour was acutely aware of what the standard was, the balance of probabilities –

PN521.

I have determined that this behaviour was of a bullying nature and is a breach of the Nyrstar code of conduct.

PN522.

Then there’s a reference in the paragraph that follows. You will then see a discussion as to notification of valid reason under (b). So her Honour finds that there’s a valid reason and then deals with in paragraph 240 whether they were notified. Her Honour systematically goes through each of the requirements. In this paragraph she deals with the three things that I dealt with that they weren’t told about: the allegations that Simmonds found not proven, the 12 statements, the lack of contrition. Her Honour finds that they were not notified of all of the reasons for their dismissal.

PN523.

Her Honour then deals with procedural fairness. I don’t need to say anything more about that except to refer to 244. Then in 245 her Honour deals with the question of contrition:

PN524.

It is clear that without disclosure of the 12 statements the applicants were unable to provide the contrition Nyrstar craved at the time of the show‑cause meetings through their inability to fully understand the impact of their conduct.

PN525.

Note, that in respect of each of the allegations that were put to them in the Simmonds documents that I took your Honours to, there is no reference to the impact of their conduct on specific individuals.

PN526.

On the evidence of contrition provided by Mr Fuller during his interview “I didn’t intend to do that,” is contrition. “I didn’t mean to hurt your feelings” is, in my respectful submission, remorse and contrition. “I was drunk at the time and it should never have happened,” is contrition. “What I did was inappropriate” is contrition. You don’t need to say sorry. In any event, Mr Fuller in his unchallenged evidence says that he was sorry if anyone was hurt.

PN527.

Her Honour refers to the fact that she is satisfied – and her Honour is the one considering the case – that there was contrition and they were sincere. Her Honour had the opportunity to see Mr Cannan in that chilling moment, “If I had known that my conduct had had this consequence, I never intended it.” Her Honour saw and heard him do that and was quite entitled to come to the view that he was genuinely contrite and sincere when he said those things.

PN528.

Could I skip over the factors because I don’t think they are relevant, although 387(e), warnings regarding unsatisfactory performance, arguably could be relevant. It doesn’t matter because there weren’t any. Could I skip over and go to 387(h), other relevant matters. Personal impact at 254, her Honour was quite entitled to come to the view that they were long-standing employees and advanced in age with specific skill sets. I note that her Honour doesn’t refer there – it may be that elsewhere her Honour does – to the family responsibilities that each of them had. All relevant to the question of harshness.

PN529.

Your Honours will see at 255 through to 263 her Honour refers to the question of condonation. With respect to my learned friend, it is absurd to suggest that Nyrstar did not know about this behaviour when, through its team leaders, to the extent that any behaviour was disclosed, it called the evidence about it. It called evidence, some of which went to Cannan and Fuller, most of which didn’t but some of which went to each of them, in terms of behaviour that they had said to have engaged in but wasn’t the subject of disciplinary action. Witness after witness was asked – let me assure you, the cross-examination was very quick – “Did you when this happen do anything about it? If you knew about this, did you consider it so serious as to do anything about it?” “No, I didn’t. I didn’t do anything about it.”

PN530.

Cannan had an unblemished employment history save and except – an issue was sought to be made by this by Nyrstar – that at some stage in history many years ago he was coached about his sick leave record. When I say “many years ago”, many years ago. Fuller had some disciplinary matters that were I think the most recent was eight years old and involved swearing. Perhaps evidence of the fact that over a long period of time either he didn’t swear or, if he did, no one was offended by it. But, in any event, there was no relevant disciplinary action. No one had taken any action against either of them and no-one considered it was necessary to do so.

PN531.

If these things had the seriousness that my learned friend attributes to them, one would have expected something to have been done at the time. And her Honour’s analysis of B, C and D v Australian Postal Corporation is absolutely 100 per cent right in my respect submission and attempts to distinguish the case because the facts aren’t the same are absurd, with respect to my friend.

PN532.

It is the principle that is contained in the passage at paragraph 257 of her Honour’s decision. It’s at 42 of the actual decision, and it’s subparagraph (2):

PN533.

The broader context in the workplace in which those action or omissions occurred. This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment.

PN534.

It is quite clear that that’s what happened in this case. To the extent that they did things that were wrong, to the extent that there was any basis in the valid reasons for dismissal, there was a history of toleration of the kind of behaviour in question.

PN535.

You won’t find any suggestion that anyone did anything about it, other than my learned friend, Ms Zeitz, who says that Mr Fraraccio tried to do something about it. Mr Fraraccio was in the curious position that the only time he decided to do something about it was when someone complained about his bullying. He had not tried to do anything, with respect, for agitating these issues in any formal way before then.

PN536.

Could I then go to what I think is the cornerstone of my submissions to the Full Bench – that is, the essential finding that her Honour makes that informs the outcome of the case, which brings everything together. It’s found in paragraph 268. My learned friend took your Honours and the Commissioner to that. With respect, there is only one matter that I need to address at any length, and that is the sentence, “I am satisfied the conduct did not justify summary dismissal,” which I’ll return to in a second.

PN537.

But her Honour’s finding, “I find the dismissals of Mr Fuller and Mr Cannan were harsh,” is against a backdrop of unblemished employment history in Mr Cannan’s case, virtually unblemished employment history in Mr Fuller’s. The fact that her Honour had regard to – I think the words that I put in her Honour’s mouth from Jupiter’s - the standard of men not angels – that is, people make mistakes and over a long period of time, these blokes might have made some mistakes but they’re to be adjudged as men not angels. They had 18 years’ service. They were advanced in age with family dependant responsibilities, that they were denied procedural fairness and their conduct was condoned and not managed by their employer. All of these things were unremarkable findings. There was nothing remarkable about any of those things, with respect. It jumped out at you once you sat there and listened to the evidence that the fact that they were 50 years old is objectively ascertainable.

PN538.

But the sentence that my learned friend says grounds her main springboard for permission to appeal, as well as would seem to excite her in terms of the fact that the search for error had uncovered something a little bit better than perhaps Mr McCullum’s incident or something a little bit more informative than some of the other things that were agitated, such as the file notes and whether Mr Fraraccio should be believed, but the sentence that draws the excitement is, “I’m satisfied the conduct did not justify summary dismissal.” There is no finding. With respect to my learned friend, there is no relevant finding. Her Honour does not say, “I find that they are summarily dismissed.” You just don’t see it. You don’t see those words.

PN539.

In the written submissions I’ve outlined the number of possible explanations for it, and the most obvious one is that they were dismissed for serious misconduct. When you go to the letter of dismissal – I think I’ve provided a reference to it – the basis for dismissal is serious misconduct. Serious misconduct usually associates itself with summary dismissal.

PN540.

When you look at authorities – I think there is a reference in my written submissions to it in Burn and Frew, but you don’t need to go there. Decisions in this jurisdiction and other unfair dismissal jurisdictions have frequently balanced the question of harshness as against the seriousness of the conduct. The more serious the conduct, the less likely it is that the tribunal of fact will find that a dismissal was, in fact, harsh. If you’re taking lots of money out of the till quite deliberately, intentionally and premeditatedly but you’re 50 years of age and you’ve been there for 50 years as well and you have a limited skill set, it’s still unlikely that the tribunal will find that the dismissal is harsh in the light of such serious and gross misconduct.

PN541.

When her Honour says, “I am satisfied the conduct did not justify summary dismissal,” in my respectful submission her Honour is simply saying that this conduct is not so serious as to justify summary dismissal. There is no relevant finding. I concede you won’t find anywhere in the decision one way or another a finding by her Honour as to whether it was summary dismissal or whether it was dismissal on notice. I completely concede that there’s an absence. But on any view, it makes no difference because her Honour’s finding must mean, “I am satisfied that the conduct was not so serious as to justify summary dismissal, and in that light I find that it’s harsh.”

PN542.

The other matter is, of course, they were, in effect, summarily dismissed. They were marched in, asked to show cause for the allegations that Simmonds had found against them and they were marched out and they were given a letter and told to go. The fact that they were paid four weeks in lieu of notice or five weeks in lieu of notice – I can’t remember which one’s correct – does not bear upon the fact of what happened.

PN543.

Those matters are developed in the written submissions. They are immaterial, in my submission – that is, whether there was a dismissal on strictly speaking a finding of summary dismissal – I submit that there wasn’t – or whether they were dismissed on notice. That does not disturb her Honour’s finding as to the matters that informed her decision that it was harsh.

PN544.

If her Honour thought the matters were so serious, that sentence would read, “I am satisfied the conduct justified summary dismissal,” and her Honour would then have to grapple with the fact that whether it was so serious that it ruled out any prospect of a finding of harshness in the circumstances.

PN545.

Could I next turn very briefly to inappropriateness. There are matters I have already mentioned that I don’t want to repeat, but I do want to read into paragraph 277 the words that my learned friend read out of it. In 276 her Honour puts questions of redundancy or other misconduct to one side – that is, indicated undisclosed serious misconduct. So her Honour was looking at the totality of any alleged misconduct that could be alleged against either applicant. The question about whether reinstatement is appropriate is against the backdrop of the kind of conduct that was agitated in the proceedings. And then her Honour says:

PN546.

Both Mr Cannan and Mr Fuller were Operators within Casting at the Nyrstar Risdon Smelter, responsible for operation of plant in the production of zinc. These positions do not have any managerial responsibilities. As is apparent from my earlier findings, whilst there existed a culture within D‑panel that had been fostered by Nyrstar’s inaction –

PN547.

note, “There was a culture within D-panel –

PN548.

both Mr Fuller and Mr Cannan breached Nyrstar’s Code of Business Conduct in their dealings with their Team Leader, Mr Fraraccio and others. There was an obligation on them to conduct themselves in accordance with the principles of that Code. The inaction of Nyrstar added to the Applicants’ lack of understanding of the effect of their conduct.

PN549.

Every time my learned friend says they didn’t demonstrate any understanding of why what they did was wrong, you can read, “and Nyrstar’s inaction contributed to that position,” and invert mantra-like references to it, I mantra-like respond: their lack of understanding was a direct result of their employer’s inaction.

PN550.

Her Honour then says:

PN551.

Having regard to the contrition expressed by both Mr Cannan in cross-examination and by Mr Fuller in the interview with Mr Simmonds, I am satisfied that both Applicants are now cognisant of their conduct and are capable of change.

PN552.

Of course, if her Honour is wrong, then time will deal with that. But her Honour considered in the type of evaluative assessment that is I think in some cases it has been said too often used in legislative prescriptions these days that is called in by the word “appropriate”, it was a matter for her Honour. It was a matter for her Honour to be informed by the relevant considerations and come to a conclusion as to the appropriateness. It was within the realms of possibility or the realms of reasonableness on a scale just short unreasonable to totally reasonable for her Honour to come to the conclusion she did. It might not have been the decision that other people would have made, but it was in the realms of what a reasonable decision-maker could do.

PN553.

I note my friend dealt with Anning. I adopt what her Honour said, and I also adopt what I said earlier: this was not a case of blanket denials. This was a case of, “Let me explain what happened.”

PN554.

Before I go to some other things could I just deal with the back pay issue, because it didn’t jump out from my learned friend’s submissions. Our position in respect of the back pay is there’s nothing remarkable on an issue like that of directions being given for both parties to file submissions. There’s nothing unusual about that. If my learned friend had sought to respond to something we had said in our submissions, then it would have been a simple matter of her, as was the case as the case went on, writing to the associate without us knowing about it and seeking an opportunity to respond. That type of correspondence happened a lot in this case. But if she wanted an opportunity to respond, there was even another way of doing it – that is, by writing to her Honour and giving us a copy of the letter and saying, “We want to respond. We don’t agree with what the other side have said and we want to respond.”

PN555.

You will note a complete absence, despite the fact that there is a claim to Nyrstar infallibility on questions of calculating back pay, there is a complete absence of any explanation for how the calculation was arrived at in the submissions that were filed by Nyrstar.

PN556.

We also refer in our written submissions, because we think it’s appropriate that the tribunal know about it, that immediately upon seeing her Honour’s directions, we wrote to Nyrstar and said, “Look, we should be able to agree on what the total amount of back pay is,” and then what’s left is an argument about appropriateness. To this day we have received no response to that. I think my instructing solicitor at some stage received an indication from my learned friend that she’d been too busy to respond to it.

PN557.

In any event, all that to one side – that is, there’s no denial of procedural fairness; that is that you can lead a horse to water but you can’t make it drink; if they wanted an opportunity to respond to our submissions, they could have; it could have been agreed to – all that aside, we concede that there is an error in her Honour’s calculations. I had originally thought the error was mine because I thought I had miscounted the months. I’ve had another look at what her Honour’s done and I don’t think I can take the blame, but there is an error.

PN558.

THE DEPUTY PRESIDENT: Your infallibility is preserved, Mr Reitano.

PN559.

MR REITANO: I thought I was wrong, but I was mistaken. We have undertaken in our written submissions and undertake to the Full Bench to concede to the slip rule before her Honour and have that order corrected. The error is the same magnitude of error that was in the error I made. Her Honour is out by about a month, and that was the error that I made. The amount of the error is the same but it’s not clear that her Honour’s made the error for the same reason. But we concede that the slip rule is invoked and that we will, upon dismissal of the appeal or on refusal of permission, we undertake to approach her Honour and have the order corrected in that respect.

PN560.

There were a number of matters that my learned friend left undeveloped in her written submissions. I don’t want to address them because I’ve addressed what I need to address, but in terms of any omission in our written submissions or oral submissions to deal with things that are in the written submissions, it should not be thought that we accept any of the submissions that have been made by not expressly referring to them. We’ve rather concentrated on what appear to be the big ticket items.

PN561.

I do want to say something specifically, though - only because I think the last time I was before Watson SDP I lost and it was one of the issues - we strongly rely upon the decision of Polites in terms of the claim that is made both in the written submissions and it was made before her Honour that there was a reasonable apprehension of bias in terms of her Honour having been in a previous life an officer of an organisation that had some dealings with Nyrstar. I think the other claim was added to it is that she had been at a Christmas party with Bill Oliver at some stage.

PN562.

With respect, we submit that Polites is four squares against my learned friend on the issue, and the fact that people attend social functions is remarkable as a ground for bias. But there is something else that’s raised in the written submissions that went entirely undeveloped both in the written submissions and the oral submissions. We need to say something about that.

PN563.

There is an allegation of actual bias on her Honour’s part. As that’s gone undeveloped, it should be withdrawn. It is entirely unfounded. It has no basis in any of the material. It has no basis in any of her Honour’s rulings. It has no basis in any of her Honour’s findings and nothing in the decision. To any extent and in any event, it should be entirely rejected by the Commission.

PN564.

We say this is a case where permission to appeal would not be granted. We say that the case is fact-centric – it turns on its own facts. There’s nothing remarkable about this decision. The bases on which it was at least developed orally as to why leave should be granted, the first basis was put that her Honour found that there was a summary dismissal. I’ve dealt with that. To the extent that there was any finding, it had no material impact on the outcome of the case.

PN565.

The second matter that appeared to be relied on was that her Honour didn’t identify the burden of proof. Her Honour was acutely aware, as is evident to the many references to “on the evidence”, “on the balance of probabilities”. It is nonsense to suggest by referring to either serious misconduct or summary dismissal that her Honour was engaging in some frolic into some question about burden of proof and onus of proof. The onus of proof was clearly identified as being on the balance of probabilities.

PN566.

Her Honour considered all of the relevant factors that went to the appropriateness of reinstatement and/or reemployment, and there is nothing that is in the nature of bullying behaviour that requires any specific consideration by this Full Bench as a matter of public interest.

PN567.

The final matter that was put had something to do with the length of the decision. With respect, that’s a completely specious basis for seeking permission to appeal. There’s nothing curious about this decision whatsoever. The Full Bench should be very careful in terms of assertions that came from my learned friend about the nature or substance of the evidence that was led below, particularly in circumstances where the references to that evidence are put in the most general terms.

PN568.

Likewise, the Full Bench would be careful not to venture into areas that were not the subject of consideration by her Honour, in particular, the claim/suggestion before my learned friend sat down that the interaction with the bullying provisions of the Fair Work Act was somehow a basis for granting permission to appeal. While the bullying provisions of the Fair Work Act were mentioned to her Honour, there was no development of any argument about the interaction of the unfair dismissal or unfair termination provisions with those provisions below.

PN569.

We submit that this case turned furiously on its own circumstances. It was a common garden-variety condonation case where, for a long period of time, there was a toleration of behaviour at the workplace, not only by these two gentlemen but by others, where nothing was done. It was a case that had regard to the harshness of dismissing two employees who had more than 18 years’ service and who were advanced in age in Hobart where it would be fairly difficult, and where the evidence disclosed it would be fairly difficult, for them to obtain alternative employment.

PN570.

In my submission, permission would be refused. If it’s granted, the appeal should be dismissed.

PN571.

THE SENIOR DEPUTY PRESIDENT: Mr Reitano, where do you say the submission as to actual bias occurred? Is it 22.1.4?

PN572.

MR REITANO: I’d say it rings a bell. I know it’s right towards the back. I think it’s 22.1.4, your Honour.

PN573.

THE SENIOR DEPUTY PRESIDENT: That’s the only one I could see that might give rise.

PN574.

MR REITANO: I know that when I read the submissions I was surprised by it, and I’m pretty sure that’s the one.

PN575.

THE SENIOR DEPUTY PRESIDENT: That’s the one, is it?

PN576.

MR REITANO: That can’t be an apprehension of bias, I don’t think.

PN577.

THE SENIOR DEPUTY PRESIDENT: That’s the one you’re identifying that because there was, you say, an argument that acceptance entirely of one’s side and rejection of the other side falls to the actual bias?

PN578.

MR REITANO: Yes, that’s right. I note your Honour raised it for a different reason, but could I say that that’s an unfair characterisation of what her Honour did. Her Honour made adverse findings against Mr Cannan and Mr Fuller that were based on what the Nyrstar witnesses had said. That’s the submission that’s made, and I’m answering it.

PN579.

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN580.

THE DEPUTY PRESIDENT: Ms Zeitz.

PN581.

MS ZEITZ: Thank you, your Honour. 22.1 is headed “Reasonable apprehension of bias”, and it was not put on any other basis than that. You might note that we haven’t pressed with any vigour that submission. The submission was put at first instance and rejected. The matter referred to in 22.1.4 we have addressed in another context entirely in the course of today – that is, that the failure to consider evidence and make findings as to credit and provide reasons for those findings as to credit is a denial of natural justice and procedural fairness to the parties, and that is front and centre of this decision. We don’t take the matter any further, but nor do we suggest and nor was it put that that was an allegation of actual bias. The entire section is headed “Reasonable apprehension of bias”, and that was what was put. It hasn’t been pressed today and we don’t take it any further other than what is contained in submission.

PN582.

THE DEPUTY PRESIDENT: There is some authority for the proposition that allegations of that nature must be progressed quickly.

PN583.

MS ZEITZ: Yes. There are just a few matters to address. I simply note that the submission, with respect to my friend, where he referred to Mr Fuller’s statement as filed as stating that he had told Mr Simmonds that he was sorry and had no intention of bullying or harassing behaviour. That is not actually not what the transcript discloses, and that is exhibit A8. There is no mention that there was any expression of remorse or sorry or anything of that nature. It was simply, “I had no intention of bullying or intimidating.” He may have asserted that he used the word “sorry” to Mr Simmonds, but that is not what the transcript says. I take that no further.

PN584.

THE SENIOR DEPUTY PRESIDENT: Is there any evidence the transcript recorded all that was said between Mr Simmonds and Mr Fuller?

PN585.

MS ZEITZ: We’ve provided the recording to the Full Bench. There were three separate items. I think Mr Cannan’s was the one that was actually incomplete. Mr Fuller’s, as I understand it, was complete. It certainly wasn’t suggested that the recording of Mr Fuller’s statement was in any way incomplete. It’s never been suggested, and we didn’t understand that to be the case.

PN586.

THE SENIOR DEPUTY PRESIDENT: Yes.

PN587.

MS ZEITZ: Mr Reitano in his submissions and again today has referred to Nyrstar’s appointed investigator. They paid the bill. He was nominated by the CFMEU. It was the outcome of a dispute notification process. To suggest that somehow that that gives him some different aspect, in our view and in our submission, is inappropriate.

PN588.

What is clear and what has been put when the Full Bench was taken through the process is that the allegations with respect to four individuals were clearly put in a general sense by Mr Simmonds, so there was an opportunity for those people to respond. Mr Simmonds had a different view about the findings he made. What I would say in response to what Mr Reitano says is this: the company is criticised for saying, “Well, we don’t accept all or some part of Mr Simmonds’ findings.” Had Mr Simmonds or, indeed, any other investigator, made findings that were specious or in any way unsubstantiated and had that been relied upon by the appellant, it would have rightly been highly criticised by the Commission and, indeed, any other commentator for failing to assess for itself whether it considered the matters raised through the investigation process to have been substantiated. Indeed, the role of the appellant was to properly consider and then to make a decision. That’s what Mr Wilson-Haffenden’s evidence is about.

PN589.

It is incorrect to say that the employees were not given an opportunity to address the general allegation, which is identified as item allegation 3 regarding the conversation regarding Messrs Phillips, King, Seabourne and I think it’s Hinds, but the report will show who they actually were. There were five team leaders identified.

PN590.

My friend referred to evidence of Mr Phillips. He gave sworn testimony in chief regarding three statements he had given. Under cross-examination he recanted large parts of that evidence. Her Honour made no finding as to what extent that evidence should be believed, whether it was discredited in whole or in part. We say that in itself was an error.

PN591.

We don’t resile from our original submission that the recitation of the accounts of the parties and the evidence does not disclose the rationale or the reasoning of her Honour for accepting some parts of the evidence in preference to others, the basis upon which she made findings of credit with respect to some people and not others and has accepted accounts and explanations provided by the applicants in preference to allegations made or testimony of other appellant witnesses.

PN592.

The difficulty with her decision – we don’t resile from this – is that the way in which it is constructed, when viewed as a whole, one goes, “Okay, well, she hasn’t accepted Mr Fraraccio’s evidence.” I just note on that, in relation to the submission that was put, Mr Fraraccio’s notes commencing at pages 141 and following identify that he started to address issues of concern with Messrs Cannan and Fuller amongst others in January of 2013 through to April 2013. The complaint made against him did not arise until 23 May 2013. So to suggest that in some way Mr Fraraccio was conducting himself in response to complaints about him is simply not substantiated by the evidence that was before the Deputy President.

PN593.

The evidence of Mr Seabourne that was referenced at PN 4937, he certainly identified that he got on well, but I invite the Commission to read the totality of his evidence about the nature of the relationship and, in particular, PN 4937, “I accept that Kevin’s attitude towards things a times. Kevin is a pretty good worker.”

PN594.

I’ve referred already to B, C and D, and I won’t go back to that. The transcript will show my submissions in relation to why we say that the extent to which the factors identified in that decision are impacted by the consequences. In this case, yes, it sets out principles, but when applied to this case, we say when you’re dealing with issues of bullying behaviour, that needs to be put into the balance.

PN595.

Unless the Full Bench has any other questions, we have nothing further.

PN596.

THE DEPUTY PRESIDENT: Thank you, Ms Zeitz.

PN597.

We will reserve our decision in the appeal.

PN598.

ADJOURNED INDEFINITELY [4.16 PM]

Fair Work Commission Transcripts

C2014/6727, Transcript of Proceedings [2015] FWCTrans 29 (23 January 2015)