BHP Billiton Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers' Union of Australia (Western Australian Branch) [2002] WASCA 172 (4 June 2002) Last Updated: 25 June 2002 JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : BHP BILLITON IRON ORE PTY LTD -v- CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA (WESTERN AUSTRALIAN BRANCH) [2002] WASCA 172 CORAM : SCOTT J (Deputy Presiding Judge) MILLER J EM HEENAN J HEARD : 4 JUNE 2002 DELIVERED : 4 JUNE 2002 PUBLISHED : 21 JUNE 2002 FILE NO/S : IAC 10 of 2001 BETWEEN : BHP BILLITON IRON ORE PTY LTD Appellant AND CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA (WESTERN AUSTRALIAN BRANCH) Respondent Catchwords: Industrial law - Industrial organisations and associations - Unfair dismissal - Employee dismissed for 'Non-Harassment Policy' - Allegations of dishonesty in subsequent inquiry - Turns on own facts Legislation: Industrial Relations Act 1979 , s 23A Result: Appeal dismissed Category: B Representation: Counsel: Appellant : Mr H J Dixon & Mr R L Hooker Respondent : Mr D H Schapper Solicitors: Appellant : Mallesons Stephen Jaques Respondent : Derek Schapper Case(s) referred to in judgment(s): Case(s) also cited: Amalgamated Metal Workers' and Shipwrights' Union of Western Australia v Robe River Iron Associates (1989) 69 WAIG 985 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 ; (1986) 160 CLR 301 BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 Boston Deep Sea Fishing & Ice Co v Ansell (1888) 39 ChD 339 Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 Gromark Packaging v Federated Miscellaneous Workers' Union of Australia, WA Branch (1992) 73 WAIG 220 Loty and Holloway v Australian Workers Union [1971] AR (NSW) 95 McCasker v Darling Downs Co-op Bacon (1988) 25 IR 107 Metal and Engineering Workers' Union - Western Australia v Hamersley Iron Pty Ltd (1993) 73 WAIG 1088 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 180 ALR 1 O'Brien & Ors v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 Police Service of New South Wales v Batton (2000) 98 IR 154 Re Australian Insurance Employees Union; Ex parte Academy Insurance (1988) 62 ALJR 426 Robe Rive Iron Associates v Australian Workers' Union (1987) 67 WAIG 320 Robe River Iron & Associates v Amalgamated Metal Workers' and Shipwrights' Union (1987) 67 WAIG 1097 Robe River Iron Associates v The Construction, Mining and Energy Workers' Union of Australia (WA Branch) (1989) 69 WAIG 1027 Shire of Esperance v Mouritz (No 1) (1991) 71 WAIG 891 Trend Management Ltd v Borg (1996) 72 IR 16 Undercliffe Nursing Home v Federated Miscellaneous Workers' Union of Australia (1985) 65 WAIG 385 Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 1 SCOTT J : Mr Ray Robinson ("Mr Robinson") was a member of the respondent union employed by the appellant, BHP Billiton Iron Ore Pty Ltd ("BHP"), as a locomotive driver. Mr Robinson had been employed in that capacity since 1996 and for 24 years prior to that had worked for Victorian Railways. 2 On 5 September 2000 Mr Robinson was dismissed as an employee of BHP and received pay in lieu of notice. In the letter dismissing him of 5 September 2000, the Railroad Manager, the author of the letter, referred to an investigation into Mr Robinson's behaviour and concluded by advising him that "he was unsuitable for further employment". That letter, and the significance of it, will be referred to later in these reasons. 3 The present respondent, on behalf of Mr Robinson, brought an application before a single Commissioner of the Industrial Relations Commission seeking reinstatement or compensation for unfair dismissal. The application was heard by S J Kenner C who, in reasons delivered on 8 May 2001, held that the dismissal was unfair and ordered BHP to reinstate Mr Robinson. In addition, Kenner C directed that Mr Robinson receive a written warning arising out of, what was said to be, dishonest answers that he gave at the inquiry into his conduct in the course of the investigation. 4 Both the present appellant and respondents appealed against the decision of Kenner C and those appeals were heard by the Full Bench of the Industrial Relations Commission comprising President Sharkey and Coleman and Smith CC. On 19 November 2001 the Full Bench dismissed the appeal by BHP and upheld the appeal by Mr Robinson deleting from the orders of Kenner C the order that Mr Robinson receive a written warning. 5 BHP appealed to this Court from the decision of the Full Bench. The appeal was heard on 4 June 2002. At the conclusion of the submissions on behalf of the appellant, the Court indicated that the appeal would be dismissed, with reasons to be given later. These are those reasons. 6 The background of the matters giving rise to the application in this appeal are set out in detail in the reasons of the Full Bench. In summary, friction arose amongst employees of BHP at their iron ore shipping operation at Mt Newman ( cf Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v BP Iron Ore Pty Ltd (2001) 81 WAIG 1263 ; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engin & Elect Div, WA Branch v BHP Iron Ore (2000) 81 WAIG 327. The Mt Newman mine is linked by rail to Port Hedland, the iron ore port for the produce of the mine. 7 The disharmony amongst the employees of BHP arose out of the fact that BHP was introducing workplace agreements in lieu of award based enterprise bargaining agreements into a number of work sites in the Pilbara. That generated ill-feeling between employees who accepted workplace agreements and those who did not. Mr Robinson did not accept a workplace agreement but other employees, and in particular Mr Anthony Holland, ("Mr Holland) did accept such an agreement. 8 Mr Holland had provided the appellant with an affidavit for the purpose of use in Federal Court proceedings concerning BHP's introduction of workplace agreements. 9 The evidence established that in the early hours of one morning on a day which was not identified, after coming off shift, Mr Robinson saw, in the crib room of BHP's locomotive yard, a pile of affidavits, including a draft one in the name of Mr Holland. That affidavit was unexecuted. Mr Robinson, on reading the document, realised that Mr Holland was providing evidentiary assistance to BHP. It is alleged that Mr Robinson then wrote various offensive words on the draft affidavit. It is not necessary to reproduce those words in the course of these reasons, save to say that they contained demeaning comments about Mr Holland and derogatory remarks about the evidence in the affidavit. 10 After writing on the affidavit, Mr Robinson received a radio call to attend a job and left the crib room. His evidence was that he did not know what happened to the affidavit or the other documents that were in the crib room at the time. 11 Subsequently Mr Robinson was advised that there would be an inquiry into his conduct. 12 The inquiry was conducted into what were alleged to be Mr Robinson's actions in writing the offensive comments on the affidavit. Mr Robinson was shown a copy of the affidavit and asked if he had anything to do with the writing on it. He denied any involvement. Following that denial, Mr Robinson was confronted with a forensic handwriting expert's report which purported to establish that Mr Robinson was the author of the notations. Mr Robinson, however, maintained his denial. 13 The inquiry was held on 4 September 2000 and the following day BHP gave Mr Robinson the letter dismissing him. I have referred to that letter earlier in these reasons. 14 That letter from the Railroad Manager to Mr Robinson provides: "I refer to the investigation conducted into breaches of the company's non-harassment policy at our meetings of Monday 4 and Tuesday 5 September 2000. At those meetings you were asked if you were involved in the distribution of 'scab' stickers, other offensive material and/or marking the affidavit of Anthony Holland with offensive comments. You denied any involvement in those matters. It was put to you that the Company has the opinion of a handwriting expert identifying you as the author of a number of offensive comments marked on the affidavit of Anthony Holland and which clearly breach the Company's Non-Harassment Policy. Notwithstanding the opinion of the handwriting expert you have maintained your denial of involvement in that matter. Based upon the expert's opinion the Company is of the view that you have breached the Company's Non-Harassment Policy in placing offensive comments on the affidavit of Anthony Holland. In the circumstances and having considered all matters raised by you the Company considers that you are unsuitable for further employment and that your employment is terminated with a payment in lieu of notice in accordance with clause 5(4) of the Award. Your sincerely M Darby Railroad Manager" 15 Mr Robinson left the site on that day, 5 September 2000. 16 As can be seen from the letter, the termination of Mr Robinson's employment was based upon what was said to be his breach of the appellant's "Non-Harassment Policy" by placing offensive comments on the affidavit of Mr Holland. 17 It is to be noted from the letter that there is no finding that Mr Robinson gave false evidence to the inquiry or misled the inquiry. His dismissal was based upon the finding that he breached the company's Non-Harassment Policy. 18 As I have indicated, the present respondent, on Mr Robinson's behalf, brought an application to the Industrial Relations Commission for various orders arising out of what was claimed to be Mr Robinson's unfair dismissal. In his decision Kenner C referred to the appellant's Non-Harassment Policy. That Policy was reduced to writing in a document which Mr Robinson agreed he was aware of. The document provides: " BHP IRON ORE NON HARASSMENT POLICY BHPIO is opposed to all forms of work related harassment including that related to sex, race, membership or non-membership of trade unions and acceptance or non-acceptance of workplace agreements. Harassment takes many forms but is usually constituted by unwelcome acts or remarks which make the workplace unpleasant or humiliating for the targeted person. Such harassment may compromise [ sic ] of: • verbal abuse, including derogatory words; • offensive graffiti; • intimidating behaviour towards another employee or members of that employee's family; and • direct threats Any employee who believes that they are being subject to harassment, and any employee who observes behaviour which may amount to harassment, should immediately report it to their supervisor or manager. Work related harassment, including threats and intimidation, is unacceptable to BHPIO and any employees found to have engaged in such behaviour will be subject to disciplinary action up to and including summary dismissal. Management will ensure that all complaints are treated confidentially, seriously and sympathetically and that appropriate action is taken whenever harassment occurs. Note that pursuant to the Workplace Agreements Act 1993 (WA) ('the WPA') a person must not by threats or intimidation persuade, or attempt to persuade, another person to not enter into (or enter into) workplace agreements. Further, Section 68(2) of the WPA relevantly provides that a person must not intimidate an employee or threaten, injury or harm to a person or property of an employer because the employee is (or is not) a party to a workplace agreement. Original signed by G P Hunt G P HUNT President December 1999" 19 In dealing with the Non-Harassment Policy Kenner C referred to the shorter Oxford English Dictionary definition of "harass" and the necessity for the person harassed to know of the alleged harassing conduct or communication. Kenner C referred to the evidence of Mr Holland who indicated that he was not aware of, and had never seen, the comments on the affidavit. Mr Holland's concern was not with the comments on the affidavit, but the fact that his draft affidavit had been distributed around the workplace. He made no complaint about Mr Robinson's writing on the affidavit and was not concerned about it. 20 With that background and upon those findings of fact, Kenner C came to the conclusion that the employer's case "falls at the first hurdle". The Commissioner concluded that the Policy did not prohibit the writing of comments on documents simpliciter , but that the Policy prohibited conduct that constituted harassment. Mr Robinson's conduct was not in breach of the Policy. 21 Kenner C, however, concluded that whilst Mr Robinson's dismissal was harsh, oppressive and unfair, nonetheless, because he had misled the inquiry, a warning should be placed on Mr Robinson's personal file. 22 It should also be mentioned that just prior to the hearing before Kenner C Mr Robinson amended his application to admit being the author of the comments on the draft affidavit. 23 In the Full Bench of the Industrial Relations Commission, the President and Coleman and Smith CC unanimously dismissed the appeal by BHP and allowed the appeal by the respondent union on behalf of Mr Robinson. In respect of the appeal by Mr Robinson, the Full Bench was of the view that Kenner C had no jurisdiction to direct that a written warning be placed on Mr Robinson's file. Before the Full Bench the appeal by Mr Robinson in that regard was not opposed. 24 In relation to the substantive appeal, the Full Bench held at [66] to [69]: "66. We do not agree that, because a person is unaware that verbal abuse has occurred until later, the act is not one of harassment. However, this was not the situation where the derogatory remarks would be, by nature of the document on which they were written, widely published or capable of being widely published. 67. It was open to find, for those reasons, and the Commissioner should have found, that Mr Robinson, in an angry mood, in the presence of others who were angry for the same reason, wrote derogatory documents on a document which he knew Mr Holland would see and read. There is no doubt that he wanted to convey his anger and contempt. The main derogatory comment was 'scab c...'. We do not think that the mere reference to scab alone was necessarily derogatory. The mere use of the word 'scab', particularly if it is merely abusive and not used in a harassing manner, may not be contrary to the Policy. 68. However, the victim or alleged targeted person (called on behalf of the CMETSWU), Mr Holland, said quite unequivocally that he was not offended nor, within the terms of the Policy, did he say or complain that he was the target of harassment. We are not persuaded that he was, therefore, harassed. 69. Within the definition of 'harassment' contained in the Policy, derogatory words or acts constituting harassment must make the workplace unpleasant or humiliating. In the absence of evidence from Mr Holland or anyone else that the workplace was made unpleasant or humiliating for Mr Holland, it was not open to find that Mr Robinson was guilty of harassing behaviour forbidden by the Policy." 25 The Full Bench also said that "the use of some hyperbole, coarse language or straight abuse" at the height of an industrial dispute was not necessarily harassment although it might be. 26 The Full Bench concluded that Mr Robinson had not breached the Policy. 27 In relation to what was said to be Mr Robinson's lies concerning the comments on the draft affidavit, the Full Bench concluded that BHP took no steps to dismiss Mr Robinson for that reason but dismissed him because of his breach of the Non-Harassment Policy. In relation to the lies, as the Full Bench expressed it: "In other words, that conduct was condoned or, put another way, the right, if it existed, to dismiss summarily or otherwise was not exercised." 28 It is clear from the reasons of the Full Bench that the Commissioners concluded that the fact that Mr Robinson had given false evidence to the inquiry was an isolated one-off act, in all the circumstances of the case, and not a basis, of itself, to justify his dismissal. In that respect, the Full Bench concluded: "... Mr Robinson did subsequently admit what he had done and no penalty was imposed or sought to be imposed for that deceit. The deceit was manifested in panic and for self-preservation, not to derive a benefit. To dismiss him for that would be manifestly unfair." 29 BHP appealed to this Court on the following grounds: "1. The Full Bench erred in law in its interpretation of the meaning and effect of the Appellant's Non-Harassment Policy ( Policy ) which proscribed a range of conduct at the Appellant's operations including conduct which makes the workplace unpleasant or humiliating for others and, thereby: (a) failed to conclude that the established, and later admitted, offensive conduct on the part of Robinson complained of was in breach of the Policy; and (b) effectively condoned his conduct which occurred in circumstances where the Appellant had warned employees that conduct of the kind under consideration was unacceptable and could result in disciplinary action up to and including termination of employment. 2. The Full Bench, having correctly concluded that Robinson had been dishonest in his dealings with his employer (the Appellant) in that during an investigation as to the conduct complained of, he had repeatedly, untruthfully and deliberately denied the conduct, erred in law in then concluding: (a) that such dishonesty was condoned or the right to rely on that dishonesty in whole or in part was not exercised by the Appellant; (b) that, in the circumstances, dismissal for that dishonesty would be properly characterised as unfair. 3. The Full Bench erred in law in failing to conclude that the conduct of Robinson including his dishonest conduct, was destructive of and incompatible with the fulfilment of his duty to his employer and the necessary confidence between employer and employee. 4. The Full Bench erred in law in concluding (and failing to correct the conclusion of the Commission at first instance) that the conduct of Robinson was, in effect, unrelated to his duties and responsibilities to the position in which he was employed by the Appellant. 5. The Full Bench erred in law in failing to conclude that the conduct of Robinson, which included his dishonest denial of the conduct, entitled the Appellant, following the conclusion that he was unsuitable for further employment, to terminate his employment by payment in lieu of notice in accordance with clause 5(4) of the Award, without such termination being harsh, oppressive or unfair. 6. ..." 30 Ground six was not pursued before this Court. 31 In developing the grounds of appeal, counsel for the appellant contended that the Full Bench had made errors of law in relation to the proper consideration of what constituted a harsh, oppressive or unfair dismissal under the provisions of s 23A of the Industrial Relations Act 1979 ("the Industrial Relations Act "). 32 It was contended that the Full Bench looked at the two aspects of Mr Robinson's conduct in isolation, rather than looking at his conduct globally and then deciding whether, in all of the circumstances, his dismissal was harsh, oppressive or unfair. 33 In dealing with the comments that Mr Robinson wrote on Mr Holland's affidavit, the Full Bench concluded at [72] to [74]: "72. Cogently, too, Mr Holland's uncontradicted evidence made it clear that his main concern was his being thought to be the cause of Mr Robinson's dismissal by what Mr Robinson wrote about him. 73. For those reasons, it was not open to find that Mr Robinson was in breach of the Policy. 74. Further, in any event, it is not at all clear to me that his act, an angry spontaneous isolated act, warranted summary dismissal within the well known tests (see Sargant v Lowndes Lambert Australia Pty Ltd 81 WAIG 1149 (FB) and the cases cited therein), even if it warranted, as it certainly did, some disciplinary action and, even if it did, as it might have, constituted misconduct which was not harassment." 34 The Full Bench then went on to consider the aspect of the alleged dishonesty of Mr Robinson, and referred to the fact that Mr Robinson was not dismissed for dishonesty, but for breach of the Policy. The Full Bench was of the view that, in all the circumstances, the appellant had condoned Mr Robinson's actions in that regard and had not dismissed him on that basis. In addition, the Full Bench was of the view that, even if Mr Robinson's conduct was not condoned then, his isolated act of giving false evidence to the inquiry would not of it self justify dismissal. 35 Importantly, as well, in their final conclusion on the substantive appeal, the Full Bench said at [89]: "In the circumstances, the dismissal for that deceit would, for those reasons be properly characterised as unfair". 36 As can be seen from the grounds of appeal, it is contended by counsel for the appellant that the Full Bench dealt with each of the two aspects of the matter without looking at them together. Counsel submitted that both aspects of Mr Robinson's conduct should have been considered and the Full Bench, looking globally at that conduct, should have asked the question as to whether his dismissal was harsh, oppressive or unfair. Counsel referred to the decision of the High Court in Concut Pty Ltd v Worrell [2000] HCA 64 ; (2000) 75 ALJR 312 and in particular the judgment of Kirby J at 322. 37 The first thing to notice about Concut's case is that it involved alleged significant misconduct by an employee using, for his own private purposes, the employer's property and the services of its employees. At 321 Kirby J set out what he described as "five basic starting points" and said at point 51.3: "The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal." 38 Kirby J further said at 322 under point 4: "Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee ... will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal." 39 That case was, of course, very different to this. The only dishonesty alleged against Mr Robinson was his denial at the inquiry that he was the author of the written comments on the draft affidavit of Mr Holland. That was a very different factual situation to that considered by Kirby J in Concut's case. 40 Counsel for the appellant also maintained that Kenner C was wrong in law in drawing a distinction between Mr Robinson's conduct as an employee of BHP, which was not in issue, and his conduct in giving evidence at the inquiry in a manner that was false. Counsel submitted that Mr Robinson's conduct was not to be excused on that basis and that Kenner C was in error in categorising Mr Robinson's conduct in that way. Counsel relied on the judgment of Kennedy J in Amalgamated Metal Workers' and Shipwrights Union v Robe River Iron Associates 69 WAIG 985 where his Honour said at 988: "By expressing, as he did, the test to be applied as being simply 'current standards of justice and fair play between employer and employee' the Commissioner appears to have been led directly into a consideration of what should have been the fair and reasonable reaction of the company to Mr Stott's conduct. Such an approach appears to me to lead, and I suspect the Commissioner in this case was led, to reviewing the employer's decision and to substituting his own." 41 Counsel for the appellant submitted that the Full Bench was also in error in approaching the matter in the same way. 42 Having reviewed the reasons of the Full Bench and of Kenner C I am not persuaded that this ground of appeal is made out. It was open to Kenner C to conclude, as he did, that Mr Robinson's conduct in denying he was the author of the comments on the draft affidavit "although wrong and a gross error of judgment, arose initially out of a concern to save his employment in a setting in which he felt under threat". That conclusion in my view, was one that was properly open on the evidence. 43 The next aspect of the appeal concerns the nature of the Harassment Policy itself. The Policy, so far as is relevant to this appeal, has been set out earlier in these reasons. 44 The first thing to note about the Policy is that it seeks to prevent the victimisation of employees. By its terms, the Policy refers to complaints being made by employees who consider that they have been harassed. The company gives an undertaking to investigate those complaints. In that respect it is important to recall that Mr Holland made no complaint, nor did he ask for anything to be investigated on his behalf. He was not threatened, intimidated or harassed, nor was there any unwelcome act or remark which made the workplace unpleasant or humiliating for him. That was so, even although he was, within the terms of the Policy, the "targeted person". 45 In my opinion, it was properly open to Kenner C and the Full Bench to conclude that the writing on the draft affidavit did not constitute harassment within the Policy. 46 For these reasons, I was of the view that none of the grounds of appeal were made out so that the appeal had to be dismissed. 47 MILLER J : I have had the opportunity of reading in draft the reasons of the Deputy Presiding Judge and I agree that for those reasons the appeal should be dismissed. 48 EM HEENAN J : I have read the reasons of the Hon Justice Scott in draft form and agree with them. There is nothing I wish to add. For the reasons given by his Honour, I too agree that this appeal should be dismissed.