Goodall v Mt Arthur Coal Pty Ltd [2016] FWC 4129 (1 July 2016) [2016] FWC 4129 [Note: An appeal pursuant to s.604 (C2016/4422) was lodged against this decision - refer to Full Bench decision dated 4 November 2016 [ [2016] FWCFB 5492 ] for result of appeal.] FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Mr Jodie Goodall v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal (U2016/678) COMMISSIONER SAUNDERS NEWCASTLE, 1 JULY 2016 Application for relief from unfair dismissal – valid reason – dismissal was harsh – reinstatement ordered [1] In the early hours of 11 November 2015, Mr Jodie Goodall, an Operator employed in the Mt Arthur open cut coal mine (the Mine), engaged in banter and chat, some of which was clearly inappropriate, over channel 6 of the two-way radio system with a number of other Operators at the Mine. Mr Goodall did so as a means of dealing with fatigue and seeking to remain alert towards the end of a 12.5-hour night shift. He was dismissed for remaining on channel 6 of the two-way radio system, for an extended period of time on 11 November 2015 and for engaging in inappropriate conversations on the two-way radio during the shift. Mr Goodall alleges that the termination of his employment was harsh, unjust and unreasonable. Mt Arthur Coal Pty Ltd (Mt Arthur) denies those allegations. Initial matters to be considered [2] I am required by s.396 of the Fair Work Act 2009 (Cth) (the Act) to decide four matters before I consider the merits of Mr Goodall’s application. There is no dispute between the parties and I am satisfied on the evidence that: (a) Mr Goodall’s application was made within the period required by s.394(2) of the Act; (b) Mr Goodall was a person protected from unfair dismissal; (c) Mt Arthur was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and (d) Mr Goodall’s dismissal was not a case of genuine redundancy. Hearing [3] The matter proceeded by way of hearing on 26 and 27 May 2016. Mr Goodall, Mr Matthew Parish, former employee of Mt Arthur, and Mr Drayton, Vice President of the CFMEU, Mining & Energy Division, Northern Mining & NSW Energy District, formerly an employee of Mt Arthur, gave evidence on behalf of Mr Goodall. [4] Mr Daniel Redman, Manager Production, and Mr Christopher Shadbolt, Production Superintendent, gave evidence on behalf of Mt Arthur. Was Mr Goodall’s dismissal unfair? [5] I am required by s.387 of the Act to take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Mr Goodall’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below. Was there a valid reason for Mr Goodall’s dismissal (s.387(a))? [6] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.” 3 [7] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees). 5 [8] In cases relating to alleged conduct, the Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred. 6 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 7 [9] The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 8 as follows: "[35]... as indicated by Northrop J in Selvachandran , " valid reason " is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct, on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer that must be a "valid reason" where "valid" has its ordinary meaning of "sound, defensible or well founded". As Northrop J noted, the requirement for a "valid reason" should not impose a severe barrier to the right of an employer to dismiss an employee. [36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a "valid reason" for dismissal." [10] Mt Arthur relies on two reasons which it contends are “valid reasons” for Mr Goodall’s dismissal: (a) First, remaining on channel 6 of the two-way radio system for extended periods of time during his 12.5-hour night shift commencing at 6:30pm on 10 November 2015 (the Shift); and (b) Secondly, making inappropriate comments over the two-way radio during the Shift. First reason – remaining on channel 6 for an extended period of time during the Shift [11] There is no dispute between the parties and I am satisfied on the evidence that Mr Goodall remained on channel 6 of the two-way radio system for a total of about 110 minutes during the course of the Shift. The question is whether his conduct in doing so constituted a valid reason for his dismissal. [12] The evidence does not disclose how many separate periods of time make up the total amount of 110 minutes, save that there were at least two such periods and most of the 110 minutes spent by Mr Goodall on channel 6 was between 4:39am and about 6:30am on 11 November 2015. Mr Goodall commenced his Shift at 6:30pm on 10 November 2015 and completed it at 7:15am the next morning. [13] There is no question that safety is a paramount consideration and responsibility for all employees and contractors who work in an open cut coal mine. An essential element of a safe workplace in a mining environment in which large vehicles and equipment are operated is effective communication. [14] Mr Goodall’s job as an Operator at the Mine required him to drive large vehicles. Most of the time he drove an ultra class truck which, when fully loaded, weighs about 600 tonne. [15] Communication with or between Operators of vehicles at the Mine can take place in a number of different ways. Each of the vehicles used at the Mine has in it a two-way radio. Communication can take place on the two-way radio system by employees communicating with each other on the same channel or by way of private call. In order to make a private call using the two-way radio system, an Operator is required to enter into the dial pad the number 20 followed by the number of the vehicle being operated by the Operator with whom they wish to communicate. The two-way radio in the recipient vehicle rings as if it were a telephone call and the Operator of that vehicle answers the call. Diggers and shovels at the Mine have a UHF radio in addition to the two-way radio system. The UHF radio system can be used for communications. Further, the vehicles and equipment at the Mine are fitted with a GOIC computer system, which permits the Operators of vehicles and equipment to be contacted with what is in effect a text message which appears on a screen. For example, a GOIC message can be sent to an Operator to “go to channel 1” on their two-way radio. [16] Although these different methods may be used to communicate at the Mine, Mr Goodall was aware during his employment at the Mine that the primary means of communication when he was operating a vehicle or piece of equipment would be through channel 1 of the two-way radio system. 9 [17] Mr Goodall was familiar with Mt Arthur’s Surface Transport Management Plan (STM Plan) during his employment at the Mine. Clause 4.4.2 of the STM Plan states: “4.4.2 Positive communication This requirement does not include the normal production activity of a truck queuing and or manoeuvring to a loading machine, and that loading machine’s approach to the truck being loaded. Positive communication is required by all mobile equipment operators including road going vehicles and emergency responding vehicles when … Entering work areas … Positive communication MUST be communicated on Open Cut Main Channel. Positive communication occurs when a caller makes a request using the equipment number of the machine giving permission and then their equipment number and the receiver responds to that request using the caller’s equipment number and then their equipment number. Example of Correct Positive Communication Caller: ‘Excavator 209 can LV 4170 N to your work area to “state your intentions for entry?’ Receiver: ‘LV 4170 you are right to enter Excavator 209’s work area.’” [emphasis added] [18] There is no dispute that the reference in clause 4.4.2 to the “Open Cut Main Channel” is a reference to channel 1 on the Mt Arthur two-way radio system. [19] Mr Goodall was aware during his employment at the Mine of the circumstances in which positive communication was required. 10 Mr Goodall was also aware that positive communication was one of the essential pillars of the safety management system at the Mine, and it was particularly important when he was driving trucks at the Mine. 11 [20] Mr Goodall undertook induction training during the course of his employment at the Mine. During that training he received instruction and training about the use of the two-way radio system at the Mine. Mr Goodall also recalls undertaking further training during the course of his employment at the Mine. [21] Mr Goodall was instructed during his training that the most common channels he would use on the two-way radio system at the Mine included the following: Channel 1 for the Main Pit; Channel 4 Pit Services; Channel 5 Drill and Blast; Channel 6 Training; and Channel 7 Maintenance. [22] Mr Goodall was trained in the fact that positive communications at the Mine were “critical to prevent miscommunication and incidents”. 12 He was also trained in the following requirement: “When communicating information about an area or run in the pit Open Cut Main Channel 1 MUST be used. Information needs to be communicated to all personnel including all Positive Communications.” [23] At no time during the training which Mr Goodall attended did management at the Mine inform him that channel 6 was a “chat channel”. 13 Mr Goodall explained his understanding and use of channel 6 in the following way during his cross examination: 14 “Channel 6 – I’ve always known channel 6 was a trainer’s channel, but channel 6 was used on night shift for as long as I’ve been there for night shift chitchat.” [24] Mr Goodall gave evidence, which I accept and which is supported by evidence given by other witnesses in the proceedings, to the effect that it was common knowledge amongst Operators at the Mine that channel 6 was a “chat channel”. 15 Mr Goodall also readily accepted in cross examination that referring to channel 6 as the “chat channel” was never something that had the authorisation of management. 16 [25] There is no dispute that Operators of vehicles and equipment at the Mine have to go off channel 1 to other channels on the two-way radio system from time to time to deal with operational and maintenance issues. For example, maintenance employees at the mine contact Operators on channel 1 and ask them to go over to channel 7 to discuss maintenance issues. While an Operator is on channel 7 discussing a maintenance issue with a maintenance employee the Operator cannot be contacted on channel 1 of the two-way radio system. Mr Goodall gave evidence, which I accept, that he has spent up to 10 minutes on channel 7 of the two-way radio system discussing maintenance issues with maintenance employees. 17 In that context, Mr Goodall also accepted in cross examination that his communications with maintenance employees on channel 7 do not last for anywhere near the duration of 110 minutes. 18 [26] Mr Goodall accepts that private calls between truck Operators are timed out after one minute. 19 However, private calls between dig Operators or shovel Operators and Open Cut Examiners do not time out. Mr Goodall gave evidence, which I accept, that he has spent anywhere up to 10 or 15 minutes on a private call with an Open Cut Examiner. 20 [27] I reject the submission made on behalf of Mr Goodall that being on channel 6 for a period of 110 minutes over a 12.5 hour shift is not an extended period of time. [28] There is no means of one employee at the Mine knowing whether another employee is on channel 1 of the two-way radio system at any particular point in time. Accordingly, if an employee operating a vehicle or piece of equipment, or a manager or maintenance employee, attempts to make positive communication with another employee operating a different vehicle or piece of equipment by using channel 1 on the two-way radio system, the second employee will not respond to the communication from the first employee if the second employee is on another channel of the two-way radio system. In these circumstances, the first employee will have to use an alternative method to communicate with the second employee, such as making a private call to the second employee or sending a message on the GOIC system. Using such an alternative means of communication, after first attempting to use the primary means of positive communication on channel 1, will necessarily take longer for the communication to take place. This additional time gives rise to a safety risk for one or more of the Operators at the Mine. [29] The reason Mr Goodall says he was engaging in chat and banter on channel 6 of the two-way radio system in the early hours of the morning of 11 November 2015 was to deal with fatigue. In particular, Mr Goodall was trying keep himself alert in the final hours of his 12.5 hour night shift. I accept that was the true reason why Mr Goodall was engaging in such conduct. [30] Mr Goodall was aware during his employment at the Mine that Mt Arthur had a Fatigue Management Policy in place and fatigue was a serious risk at the workplace, particularly for employees working 12.5 hour night shifts and operating large trucks with a high tonnage capacity. 21 Mr Goodall understood that, before a fatigue management policy or measure could be implemented at the Mine, a risk assessment should be undertaken. Mr Goodall accepts that neither he, nor anyone else to his knowledge, undertook a risk assessment before using chats on channel 6 of the two-way radio system as a means of dealing with fatigue. [31] Mr Goodall accepts that, in accordance with the Fatigue Management Policy, the appropriate thing for him to have done on the morning of 15 November 2015 was to stop working and call in to his supervisor or to dispatch and inform them that he felt fatigued. 22 In fact, the Fatigue Management Policy requires employees to “identify, monitor and report fatigue-related issues”. 23 By failing to report his fatigue during the Shift and instead engaging in chat on channel 6 for an extended period of time, Mr Goodall breached his obligations under the Fatigue Management Policy. [32] For the reasons set out in paragraphs [11] to [31] above, by reason of his conduct in remaining on channel 6 for a total of 110 minutes during the Shift I find that Mr Goodall: (a) breached his obligation under clause 4.4.2 of the STM Plan and the direction given to him during training to be in a position to hear communications made over channel 1 of the two-way radio system; (b) inhibited his ability to achieve positive communications as required by the STM Plan; and (c) breached his obligation under the Fatigue Management Policy to report his fatigue to management on the morning of 11 November 2015. [33] I also find, as contended for by Mt Arthur, that Mr Goodall’s conduct in remaining on channel 6 of the two-way radio system for a total of about 110 minutes during the Shift put, to some extent, his and others’ safety at risk. I will address the extent of the risk to safety below when I consider the harshness of the dismissal. [34] These substantial breaches of policy and directions by Mr Goodall meet the standard of constituting a sound, defensible and well founded reason for dismissal related to the employee's conduct. Accordingly, I find that Mt Arthur had a valid reason to dismiss Mr Goodall related to his conduct in remaining on channel 6 of the two-way radio system for a total of about 110 minutes during the Shift. Second reason – inappropriate comments [35] Mt Arthur alleges that Mr Goodall made the following comments on channel 6 of the two-way radio system during the Shift: at approximately 4:39 am on 11 November 2015, in response to comments by a colleague about the “rear end” of his truck getting “banged up”, Mr Goodall said “that’s no good getting your rear end banged up” and “Parish would like it”; at approximately 4:52 am on 11 November 2015, when talking about a colleague, Mr Goodall stated that “he’d probably like a good teabagging”; at approximately 4:53 am on 11 November 2015, during a conversation about Volkswagen Beetle cars, Mr Goodall stated that “that’s what, um, an Asian call his beetle, a dung beetle”; at approximately 5:10 am on 11 November 2015, in response to a question about what book a colleague was reading, Mr Goodall stated “that book on 50 ways to eat cock”; at approximately 5:10 am on 11 November 2015, in response to the comment “since when have you been covering your arse, Bounder”, Mr Goodall stated “probably when you’re walking round in the bathhouse Parish”; at approximately 6:09 am on 11 November 2015, when talking about a colleague at the gym, Mr Goodall stated “have your jatz crackers fall out?”; and at approximately 6:25 am on 11 November 2015, in relation to Muslims, Mr Goodall stated that: “it’s not just Australia it’s friggin everywhere everyone’s just bend over backwards for the Muslims”; “ah they [Muslims] had 1400 years of bloody inbreeding so they gotta be fucked up”; and “exactly, yep” in response to the following comment made by one of Mr Goodall’s colleagues: “We’re just a complete gutful of how they [Muslims] just think they can just run the whole show change our way of life it’s crazy”. [36] Save for a minor discrepancy concerning the third bullet point in the previous paragraph, there is no dispute between the parties and I am satisfied on the evidence that Mr Goodall made those comments on channel 6 during the course of the Shift. [37] As to the third bullet point, it is alleged that Mr Goodall said “that’s what, um, an Asian call his beetle, a dung beetle”. Mr Goodall says he said “Azn” rather than “Asian”. This difference is significant because my finding in relation to the word that was used will determine whether or not the comment was a racist comment. Mr Goodall gave the following explanation in his witness statement in relation to this issue: “In discussing the vehicle I … was referring to a character on a television show called ‘Street Outlaw Farm Trucks’. One of the main characters is called ‘Azn’ and in one of the episodes he refers to his Volkswagen Beetle motor vehicle as ‘the dung beetle’. I deny that I was referring to nationality or race.” [38] Mr Goodall was not challenged on his explanation in this regard during cross examination. His explanation is plausible and I accept it. Accordingly, I find that Mr Goodall did not make a racist comment in relation to the “dung beetle” remark. [39] Mt Arthur has a Code of Business Conduct (the Code) which is, and was during Mr Goodall’s employment, applicable at the Mine. Mr Goodall was aware of, and trained in, the Code. It has parts dealing with equality in employment, harassment, and bullying. The latter part of the Code expressly prohibits behaving in a way that is “offensive, insulting, intimidate[ing], malicious or humiliating”, making “jokes or comments about a person’s race, gender, ethnicity, religion, sexual preference, age, physical appearance or disability”, assuming that “acceptable behaviours are the same for every culture”, and “use[ing] BHP Billiton resources to distribute offensive materials”. It also requires employees to “treat everyone with respect and dignity” and “be prepared to adapt your own behaviour in response to feedback or when considering cultural considerations of another operational country”. In addition, clause 4.4 of the STM Plan provides that “2 way radio communications must be in accordance with our code of conduct the training”. Mt Arthur also has obligations under Federal and State legislation to ensure that its workplaces are free of discrimination and harassment. Mt Arthur is entitled to protect its reputation by requiring employees and contractors to comply with its policies and the legislation that underpins them. [40] The comments made by Mr Goodall set out in paragraph [35] above breached his obligations under the Code and the STM Plan in the following ways: (a) he made comments which may reasonably be viewed as offensive; (b) he demonstrated a lack of respect for other persons; (c) he made comments which were sexual in nature and may reasonably be viewed as offensive; and (d) he made comments and used language which may have offended people of a particular race/religion and which expressed and incited derogatory views of people of a particular race/religion. [41] Mr Goodall’s conduct in making inappropriate comments over the two-way radio system and thereby engaging in substantial breaches of his employer’s policies gave Mt Arthur a sound, defensible and well founded reason for dismissal related to his conduct. Accordingly, I find that Mt Arthur had a valid reason to dismiss Mr Goodall related to his conduct in making inappropriate comments on the two-way radio system during the Shift Was Mr Goodall notified of the reasons for his dismissal and given an opportunity to respond (s.387(b)&(c))? [42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 24 , and in explicit 25 and plain and clear terms. 26 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]): “As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” [43] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 27 [44] On the swing following the Shift, Mr Goodall was informed by Mr Simon Hodge, Open Cut Examiner, and Mr Simon Leaton, Open Cut Examiner, that his communication over channel 6 during the Shift was not appropriate and it was possible that the matter would be investigated further. [45] Mr Goodall did not hear anything further in relation to his conduct during the Shift until 8 January 2016. [46] On 8 January 2016, Mr Goodall was directed to attend a meeting with Mr Shadbolt and Mr Redman, who informed him that an investigation had commenced in relation to the discussions that took place on channel 6 during the Shift. During the meeting Mr Goodall listened to audio recordings of some of the conversations held on channel 6 during the Shift. Mr Goodall was asked to respond to allegations that he had made inappropriate comments on the two-way radio system. He admitted to making the comments as per the audio recordings. [47] Mr Goodall was provided with a letter dated 8 January 2016 informing him that he had been stood down on pay pending the outcome of the investigation. [48] On 19 January 2016, Mr Goodall attended a further meeting with Mr Redman and Mr Shadbolt. On 20 January 2016, Mr Goodall was provided with a letter from Mt Arthur, setting out the findings from the investigation, including the policies and procedures allegedly breached by Mr Goodall, and asking him to show cause as to why his employment should not be terminated. Attached to that letter is a copy of extracts of the transcript from the discussion on channel 6 of the two-way radio system during the Shift. [49] On 27 January 2016, Mr Goodall responded to the show cause request by way of correspondence to Mt Arthur. [50] On 9 February 2016, Mr Goodall attended a further meeting with Mr Redman and Mr Shadbolt. At that meeting Mr Redman informed Mr Goodall that his employment had been terminated. Mr Redman also provided Mr Goodall with a letter of termination dated 9 February 2016. The letter of termination set out the reasons for termination, including the policies and procedures breached by Mr Goodall. [51] There is no dispute about any of the facts set out in the previous seven paragraphs. On the basis of those facts, I am satisfied that Mr Goodall was (a) notified of the reasons for the termination of his employment prior to the decision to terminate his employment, and (b) given an opportunity to respond to the reasons for his dismissal prior to his dismissal. [52] I reject the submission made on behalf of Mr Goodall that he was not provided with an adequate opportunity to respond to the reasons for termination because the entire audio recording was not played to him. Mr Goodall accepts that he was provided with an opportunity to, and did, listen to a number of the recordings. In any event, Mr Goodall was provided with a transcript of the relevant recordings, and he admitted that he understood each of the allegations that had been made against him. [53] I also reject Mr Goodall’s submission that he was not provided with an adequate opportunity to respond to the reasons for termination because he was not provided with copies of Mt Arthur’s policies and procedures. Mr Goodall did not request a copy of any of the relevant workplace policies and procedures. He could have done so. Further, the Code is publicly available on the internet. In any event, the relevant parts of the policies and procedures were set out in the show cause letter dated 20 January 2016 and Mr Goodall was familiar with those policies and procedures. [54] Mr Goodall also complains about the fact that the investigation was undertaken approximately eight weeks after the conduct during the Shift occurred. During this eight week period of time Mt Arthur undertook a detailed investigation concerning the involvement of Mr Goodall and a number of other employees and contractors in communications over the two-way radio system during the Shift. That investigation included having the recordings of the communications transcribed and analysing the different vehicles and pieces of equipment operated by the various employees and contractors during the Shift. An investigation of that kind necessarily takes some time. In any event, I am not satisfied that the delay between when Mr Goodall was first told in November 2015 that his communications were inappropriate and it was possible that the matter would be investigated further and Mr Goodall’s next involvement in the investigation on 8 January 2016 hindered his ability to respond to the allegations or otherwise gave rise to any procedural unfairness. Was there an unreasonable refusal to allow Mr Goodall to have a support person present (s.387(d))? [55] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. [56] There is no positive obligation on an employer to offer an employee the opportunity to have a support person: “This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 28 [57] Mr Goodall took a support person with him to his meeting with Mr Leaton and Mr Hodge (shortly after the incident) and his meetings with Mr Redman and Mr Shadbolt on 8 January 2016, 19 January 2016 and 9 February 2016. Accordingly, I am satisfied that there was no unreasonable refusal by Mt Arthur to allow Mr Goodall to have a support person present to assist at any discussions relating to his dismissal. Warnings about unsatisfactory performance (s.387(e)) [58] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. [59] In this case, the reasons for dismissal related to Mr Goodall’s conduct, rather than his performance, so this consideration is not relevant. Impact of size of Mt Arthur on procedures followed in effecting the dismissal (s.387(f)) [60] Mt Arthur is a large business enterprise, so that I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Goodall’s dismissal. Absence of dedicated human resource management specialists or expertise (s.387(g)) [61] Mt Arthur has dedicated human resource management specialists and expertise, so this consideration is not relevant. Other relevant matters (s.387(h)) [62] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant. [63] The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 29 in the following terms: “[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “ valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 ; J Boag & Son Brewing Pty Ltd v John Button [2010] FWAFB 4022 ; Windsor Smith v Liu [1998] Print Q3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171 ; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] PR919205 . That principle reflects the approach of the High Court in Victoria v Commonwealth and is a consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”. [42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories: (1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred. (2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.] (3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.] [43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”. ... [47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] FCA 209 ; (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460): “Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.” [48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] PR958003 , Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].” [64] In this case there are six relevant matters which I consider lead to the conclusion that Mr Goodall’s dismissal was “harsh” in both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 30 . That is, the dismissal was “harsh in its consequences for the personal and economic situation of the employee” and “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” [65] The first relevant matter is the length and quality of Mr Goodall’s employment record with Mt Arthur. Mr Goodall commenced employment with Mt Arthur at the Mine on about 16 May 2011. He had an exemplary employment record throughout his almost five-year 31 period of employment with Mt Arthur. He did not receive any warnings, or have any disciplinary action taken against him, at any time during his employment with Mt Arthur, save for his conduct during the Shift. Mr Goodall made the following unchallenged statement in his response to the show cause notice: “I have been very highly regarded as a Greater Operator in my career and have been highly commended by OCE’s and other fellow Operators. During one of the meetings leading to the issuance of the show cause request, my Superintendent made mention that I was one of the best Grader Operators on site. A few years ago I was trained to operate shovels and was selected on the basis of my work ethic and ability. Trainers regularly refer Grader Operators to me for tips in relation to grading and I informally mentor Grader Operators.” [66] The second relevant matter is the gravity of Mr Goodall’s misconduct. For the reasons set out in paragraphs [28], [32] and [33] above, I find that Mr Goodall’s conduct in remaining on channel 6 of the two-way radio system for a total of 110 minutes during the Shift gave rise to a risk to his safety and the safety of others at the Mine. In my view, those risks were both real and not trivial, but they are fairly characterised as being towards the lower end of the scale, for the following reasons: (a) There were other means of contacting Mr Goodall when he was on channel 6 during the Shift. In particular, he could have been contacted by private call on the two-way radio system (which is a common method of communication), through the GOIC system, or by going on to channel 6 (if the person wanting to contact Mr Goodall was aware he was on that channel). Accordingly, Mr Goodall was, at all times during the Shift, contactable. As I have set out above, it would have taken somebody longer to contact Mr Goodall when he was on channel 6 than if he was on channel 1, but the delay in contacting Mr Goodall when he was on channel 6 would have been relatively short; (b) Blast and emergency tones are heard on all channels of the two-way radio system, regardless of the particular channel being used by an employee at the time. As a result, Mr Goodall was in a position to hear any emergency or blast tones communicated over the two-way radio system during the Shift; and (c) At the time Mr Goodall made the inappropriate comments on the two-way radio system he was working in a part of the Mine known as “Snake Gully”. That is an isolated area of the Mine with only one shovel and one dump. As a consequence, there is not usually a high level of interaction between the Operators of vehicles or equipment in that part of the Mine. Mr Goodall explained the area of the Mine in the following way in cross examination: “…that part of the pit that we were working in, called "Snake Gully", was only one-shovel, one dump. It was a very basic point A/point B return. There was no interaction with other heavy vehicles. It was a very isolated area, but if I had have been at what they call the "super ridge" part of the pit, where there is high interaction of machinery, I would not have even been on the channel...” 32 [67] Mr Goodall’s conduct in making the comments referred to in paragraph [35] above over the two-way radio was clearly inappropriate. In considering the gravity of that conduct, it is necessary to have regard to the nature of the comments, the circumstances in which the comments were made and who they were directed at. In particular: (a) Mr Goodall swore when making the comments on the two-way radio system. However, Mt Arthur concedes that profanities are commonly used at the Mine and more generally throughout the mining industry. 33 The gravity of Mr Goodall’s conduct in swearing over the two-way radio is at the very low end of the scale of seriousness; (b) Mr Goodall made a number of crude, lewd and sexist comments on the two-way radio system. He did so in an attempt to be entertaining to his work mates. For example, Mr Goodall made the statement “that book on 50 ways to eat cock” in relation to a chicken recipe book of which he is aware with the title “50 ways to eat cock”. Mr Goodall was attempting to be funny because he found the title of the cookbook to be humorous. Mr Goodall was engaging in what he regarded as banter and chat with a number of his work mates over channel 6 of the two-way radio system. They were stirring each other up and were seeking to be entertaining. Mr Goodall and his work mates exercised poor judgment in making such comments in the workplace. Their conduct in that regard was inappropriate and in breach of a number of Mt Arthur’s policies. Disciplinary action of some kind was warranted. However, I would not regard such conduct on a single day at a mine site as being at the high end of the scale of serious misconduct. Such conduct was towards the lower end of the scale of seriousness; and (c) Mr Goodall’s comments over the two-way radio concerning Muslims were clearly inappropriate and in breach of a number of Mt Arthur’s policies. This is the most serious aspect of the inappropriate comments made by Mr Goodall over the two-way radio system. In fact, Mt Arthur submitted that the factor which swayed it to terminate Mr Goodall’s employment was not the making of lewd, sexist and crude comments, but the making of Islamaphobic comments. If Mr Goodall had directed his comments concerning Muslims to any particular employee or group of employees at the Mine, I would have regarded his conduct at the high end of the scale of seriousness. However, Mr Goodall did not direct his comments concerning Muslims to any person or group of people at the Mine. Mr Goodall was not aware of any Muslims working at the Mine, and he would not have made such comments if he was aware of any Muslims working at the Mine. 34 His comments concerning Muslims represent an expression by him of his personal views. He should not have expressed such views at the workplace, particularly over a two-way radio system where up to about 100 employees and contractors at the Mine could have heard and potentially been offended by the comments, whether or not they were Muslim. In fact, at least two employees complained to Mt Arthur management about the inappropriate comments made over the two-way radio system during the Shift. No evidence was adduced as to which parts of the comments caused the complainants to raise their complaints with management, but the comments by Mr Goodall about Muslims could well have been the catalyst for the complaints. Employees and contractors are entitled to attend work and not be subjected to commentary by other employees of a derogatory nature about particular religions or races. I regard Mr Goodall’s expression of his own views about Muslims over the two-way radio during the Shift as being in the mid-range on a scale of seriousness. [68] The third relevant matter is that the personal and economic consequences for Mr Goodall of the dismissal have been severe. Mr Goodall is the main breadwinner for his family. He is a father of four children and three of them are financially dependent on him. Mr Goodall relocated his family to New South Wales to take up the job with Mt Arthur at the Mine. Mr Goodall’s partner only works part-time, earning approximately $300 gross per week. Mr Goodall was unemployed from the date of his dismissal with Mt Arthur on 9 February 2016 until about mid May 2016, notwithstanding significant efforts by him to obtain alternative employment. During that time, Mr Goodall and his family faced financial hardship. In particular, after the payment of three weeks’ wages in lieu of notice to Mr Goodall ran out, he was forced to cash out his long service leave entitlement and had to borrow $500 from his father just so that he could get to work at his new casual job. The alternative employment Mr Goodall has recently obtained is as a casual employee of a labour hire company in the mining industry. That employment is not secure, and is paid at a much lower rate than Mr Goodall received during his employment with Mt Arthur. [69] The fourth relevant matter is that there are some mitigating factors in relation to Mr Goodall’s conduct during the Shift. In particular, the most inappropriate comments made by Mr Goodall during the Shift relate to Muslims and persons of the Islam faith. Those comments were made by Mr Goodall in the space of a very short period of time (a couple of minutes, I infer from the transcript of the recordings) 35 at about 6:25am, which was in the last hour of his 12.5 hour night shift. Having started the Shift at 6:30pm on the previous evening, it is likely that the effects of fatigue on Mr Goodall were most influential in his last hour or so of work on the Shift. In addition, all of the inappropriate comments made by Mr Goodall during the Shift took place in a period of about two hours, commencing at 4:39am on 11 November 2015. It is not alleged that Mr Goodall made such comments over the two-way radio system, or elsewhere in the workplace, at any other time during his employment at the Mine. Mr Goodall’s misconduct in making the inappropriate comments on the two-way radio system from 4:39am until about 6:30am on 11 November 2015 can fairly be characterised as an isolated and temporary failure by him to act in accordance with the values and standards required of all employees and contractors at the Mine. [70] The fifth relevant matter is that, although management at the Mine have not authorised the use of channel 6 of the two-way radio system as a chat channel and it is officially the training channel, there was, during Mr Goodall’s employment at the Mine, a practice of channel 6 being used for non-work related communications. In particular, supervisors at the Mine have conducted and participated in trivia sessions over the two-way radio system as a means of keeping employees alert during night shift at the Mine. Some of those trivia sessions are held on channel 1, while other trivia sessions were, during Mr Goodall’s employment at the Mine, conducted on channel 6. These trivia sessions can go for up to an hour or more. During the times trivia sessions were held on channel 6 the Operators participating in the trivia could be contacted on channel 6 or by one of the other available means of communication. In addition, I accept the evidence given by Mr Goodall, Mr Parish and Mr Drayton that, for a significant period of time, channel 6 has often been used by employees on night shift as a “chat channel” in an effort to try and stay alert during a 12.5 hour night shift. These contextual matters do not, in my view, provide a defence to the fact that Mr Goodall breached a number of workplace policies and procedures by remaining on channel 6 for a total of about 110 minutes during the Shift. However, the existence of these practices at the workplace is relevant to my overall assessment of whether the dismissal was harsh in all the circumstances. [71] The sixth relevant matter is my assessment that Mr Goodall is, and was during the investigation into these matters, genuinely contrite and he accepts that his conduct during the Shift was inappropriate and unacceptable. I observed Mr Goodall give evidence in this matter. He is ashamed by his conduct. He is devastated by his dismissal and the significant consequences of it for him and his family. Mr Goodall knows that he “stuffed up; I made a mistake … I’ve learned my lesson”. 36 I accept his evidence in that regard. Mr Goodall came across as a truthful and reliable witness. He gave evidence in a direct and frank manner. He also made numerous (appropriate) concessions in answer to the propositions put to him in cross examination. [72] As soon as the matters were first raised with Mr Goodall in November 2015 (prior to the investigation), he apologised to the Open Cut Examiners, Mr Leaton and Mr Hodge, for “any comments I made on channel 6 and for remaining on channel 6 for a period that they considered to be unreasonable”. 37 In addition, after Mr Goodall’s initial meeting with Mr Leaton and Mr Hodge in November 2015 he did not, at any time prior to his dismissal on 9 February 2016, go back on to channel 6 for any reason. [73] During his meeting with Mr Redman and Mr Shadbolt on 19 January 2016, Mr Goodall apologised for his behaviour during the Shift. 38 [74] In his show cause response dated 27 January 2016, Mr Goodall accepted that his conduct was not appropriate, apologised again (this time in writing), undertook not to make such comments again over the two-way radio, agreed to undertake any further training that Mt Arthur deemed necessary, and concluded his response by stating: “I look forward to returning to the mine and proving that I am an outstanding employee”. [75] There is a dispute on the evidence about whether Mr Goodall apologised in his meeting with Mr Redman and Mr Shadbolt on 8 January 2016. Mr Goodall says that he admitted to making the comments as per the audio recordings and apologised for his conduct. Mr Redman gave evidence in his witness statement that Mr Goodall “told me he couldn’t deny what he had said and that he knew it doesn’t fit with the Charter Values but he was ‘just mucking around, that’s all’.” 39 Neither Mr Redman nor Mr Shadbolt denied in their witness statement the statement made by Mr Goodall in his witness statement that he apologised in the meeting on 8 January 2016. Mr Shadbolt annexed to his witness statement a typed “copy of some of my notes from that interview”. There is no reference in Mr Shadbolt’s typed notes of any apology by Mr Goodall at the meeting on 8 January 2016. In cross examination, both Mr Shadbolt and Mr Redman denied that Mr Goodall apologised at the meeting on 8 January 2016. However, Mr Shadbolt’s denial in this regard should, in my view, be given limited weight because he could not recall if Mr Goodall apologised at the meeting on 19 January 2016, whereas Mr Redman agrees that he did. On balance, I am satisfied that Mr Goodall did apologise at the meeting on 8 January 2016. His assertion that he did so is consistent with the fact the he apologised in November 2015, at the meeting on 19 January 2016, and in his response to the show cause letter. In addition, the fact that Mr Goodall immediately agreed with Mr Redman at the meeting on 8 January 2016 that what he had said did not “fit with the Charter Values” suggests it is likely he also apologised in that meeting. [76] Neither Mr Redman nor Mr Shadbolt accepted that Mr Goodall’s apologies were genuine or that he would be likely to cease making inappropriate comments at the workplace if he remained as an employee of Mt Arthur. One reason for their views in this regard is their opinion that Mr Goodall sought, in part, to blame management and others for what had happened. [77] In his show cause response, as well as accepting that his conduct was not appropriate, apologising again (this time in writing), and undertaking not to make such comments again over the two-way radio, Mr Goodall made reference to what I would describe as “contextual matters”, such as the practices of Operators and managerial employees swearing and making inappropriate comments at the workplace. In my view, statements of that kind by Mr Goodall were reasonable and did not detract from the sincerity of his apology or his promise not to engage in such conduct in the future, particularly in circumstances where he was trying to show cause as to why his employment should not be terminated. [78] Mr Redman was also concerned by a comment made by Mr Goodall in the meeting on 8 January 2016 to the effect that “this is BHP’s way of pissing people off and stripping morale off us”. I accept that Mr Redman had a legitimate reason to be concerned about this statement by Mr Goodall in the investigation process. The reason Mr Goodall made this statement was because he was informed in November 2015 that there may be an investigation in relation to what was said during the Shift. Mr Goodall was plainly concerned about the possibility of an investigation, but he heard nothing more about it until he was called in to a meeting on 8 January 2016 and the allegations were put to him. It was the two month delay and the fact that Mr Goodall was not told during that delay of the fact that the investigation was proceeding that caused Mr Goodall to be upset at the meeting on 8 January 2016. Mr Goodall’s initial response was to perceive the eight week period as a deliberate strategy by Mt Arthur to delay the investigation. He did not know the amount of time it had in fact taken for Mt Arthur to undertake the analysis of which Operators were operating which vehicles and equipment at various times during the Shift and to have all the relevant radio recordings transcribed and assigned to the particular Operators working during the Shift. Mr Goodall’s response was not one he should have made, but in the circumstances I am satisfied that his initial response in that meeting did not detract from the sincerity of his apology, his acceptance of his wrongdoing, or his promise not to engage in such conduct in the future. [79] Mr Redman expressed concern about statements made by Mr Goodall during the investigation process in relation to Mr Goodall’s views about Muslims. The context of these comments is important. Mr Redman asked Mr Goodall at the meeting on 8 January 2016 whether he would execute Muslims. 40 Mr Goodall said that he would not. Mr Goodall also went on to say words to the effect that “it would not bother me if it did happen; Muslims do not have a problem with executing us”. They were personal views Mr Goodall expressed, not to the workforce in general, or part of it, but in answer to a direct question from a manager in an investigation. The fact that Mr Goodall holds such views and gave an honest answer to a question from a manager during an investigation does not, in my opinion, detract from what I consider to be the genuine nature of his remorse for his conduct. I am satisfied that Mr Goodall now understands his obligation not to make comments in the workplace which will or may cause offense or demonstrate a lack of respect for others. [80] Mr Redman construed Mr Goodall’s statements on 8 January 2016 to the effect that (a) what happened on channel 6 during the Shift was “just blokes having a laugh”, (b) “I believe my biggest fault is not being on channel 1”, and (c) “the most extreme thing I said was ‘fucked up’” as a failure by Mr Goodall to appreciate the seriousness of his conduct and caused Mr Redman to further doubt the sincerely of Mr Goodall’s apologies. These comments by Mr Goodall need to be considered in context. Part of the context includes the fact that these comments were all made after Mr Goodall had accepted, at the start of the meeting that his comments did not fit with Mt Arthur’s “charter values”. What Mr Goodall was seeking to point out was that he participated in conversations during the Shift with a group of employees, all of whom voluntarily engaged in what he believed to be banter and chat. Mr Goodall did not appreciate, at the time he participated in the discussions during the Shift, that other employees who may have been listening to the conversation on the two-way radio could have been, and were, offended by the comments made by Mr Goodall and his work mates, even though it is likely that none of the main participants in the discussion were offended at the comments directed at them. Neither Mr Redman nor Mr Shadbolt heard the conversations over the two-way radio during the Shift, but they were offended by them when they read the transcript of the recordings. Mr Goodall’s appreciation of the offence that he could have caused to others at the Mine did not evidence itself until he submitted his response to the show cause letter. In that response, Mr Goodall did, in my view, evidence his appreciation of the offence comments of this kind could cause others at the workplace. For example, in his response Mr Goodall stated that he was “apologetic if I have offended anyone, however it was certainly not my intent.” From my observation of Mr Goodall giving evidence in the proceedings, he continues to appreciate the offence such comments will or may cause to others. I am confident that Mr Goodall will not make such comments in the workplace in the future. Inconsistent treatment [81] Mr Goodall asserts that he was unfairly afforded inconsistent treatment by Mt Arthur in relation to his dismissal. He points to other employees who either received warnings or no sanction as a consequence of their involvement in the communications over channel 6 during the Shift. [82] In Darvell v Australian Postal Corporation [2010] FWAFB 4082 , the Full Bench made the following comments in relation to the question of differential treatment between employees (at [21]-[24] references omitted): “[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd . In Sexton's case, his Honour said: "[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable … [36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a 'fair go all round' within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing 'apples with apples'. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made." [22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act. [23] Similarly, in Daly v Bendigo Health Care Group , Senior Deputy President Kaufman said: "[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP's observation in Sexton that ' there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. ' There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly's years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly's termination of employment was harsh, unjust or unreasonable." [Footnotes omitted] [24] We respectfully concur with their Honours.” [83] I find that the different treatment of Mr Goodall to other employees and contractors involved in the discussion on channel 6 during the Shift was not unfair because Mt Arthur had regard to a range of factors in deciding what, if any, sanction should be imposed on each employee and contractor involved in the communications on channel 6 during the Shift. In particular, Mt Arthur considered whether each employee and contractor (i) made inappropriate comments directed to a particular race or religion, (ii) made inappropriate comments of a sexual nature, (iii) spent an excessive amount of time on channel 6, and/or (iv) positively contributed to the discussion. The only other employee who engaged in the same types of conduct as Mr Goodall was also dismissed. The other employees received warnings or were counselled, depending on their individual conduct. Further, contractors who engaged in inappropriate communications on channel 6 during the Shift were not allowed by Mt Arthur to return to the Mine. Conclusion as to harsh, unjust or unreasonable dismissal [84] After considering each of the matters specified in section 387 of the Act, I am satisfied that Mt Arthur’s dismissal of Mr Goodall was harsh, but was not unjust or unreasonable. Remedy [85] Having found that Mr Goodall was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what, if any, remedy should be granted to him. Mr Goodall seeks the remedy of reinstatement. As a result, I need to consider whether reinstatement of Mr Goodall is appropriate. [86] Mt Arthur submits that, should the Commission find that Mr Goodall’s dismissal was harsh, unjust or unreasonable, he should not be reinstated because it has no trust or confidence in him, particularly on the basis that it submits (a) he has not accepted responsibility for his conduct or that it jeopardised safety at the Mine, (b) he lashed out at management during the investigation, (c) he has offended people at the Mine that he would be required to work with (Mr Shadbolt and Mr Redman, and potentially others but the evidence does not disclose who they may have been or what they took offence to), (d) he has had complete disregard for, and seriously jeopardised, Mt Arthur’s reputation, (e) he has continued to downplay his comments throughout the investigation and, on at least one occasion, blamed Mt Arthur, (f) he continued to make offensive comments during the investigation meeting on 8 January 2016, (g) he did not apologise or express remorse on the first occasion, nor did he co-operate with his employer, (h) Mt Arthur is entitled to expect its reasonable and lawful policies will be complied with, and (i) Mt Arthur has obligations pursuant to Federal and State laws to ensure that its workplaces are free from discrimination and harassment. [87] A Full Bench examined the relevant principles concerning an alleged loss of trust and confidence in the context of an application for reinstatement in Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter (references omitted): 41 “[27] The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases: Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement. Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts. An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion. The reluctance of an employer to shift from a view, despite a tribunal's assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed. The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. [28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.” [88] Put another way, it is necessary when assessing the appropriateness of an order for reinstatement to consider whether Mr Goodall has demonstrated sufficient understanding that his behaviour during the Shift was inappropriate and unacceptable such as to give rise to a sufficient level of confidence that conduct of that type will not recur if he is reinstated and the employment relationship will be viable and productive. 42 For the reasons set out in paragraphs [65] to [80] above, I am satisfied that Mr Goodall has demonstrated enough self-awareness as to his conduct during the Shift to give rise to sufficient confidence that such conduct will not recur if he is reinstated. I am satisfied that there will be a viable and productive on-going relationship between Mr Goodall and Mt Arthur, and that Mr Goodall will be able by his future conduct to regain the trust of those employees and contractors he offended by making comments over the two-way radio during the Shift. I make these findings having considered the submissions made by Mt Arthur against reinstatement, as summarised in paragraph [86] above. I have addressed those matters in paragraphs [11] to [41] and [65] to [80] above. [89] I therefore consider that the appropriate remedy in this case is an order under s.391 of the Act reinstating Mr Goodall to the position in which was employed immediately before the dismissal, namely as an Operator. I also consider it appropriate to make an order under s.391(2)(a) to maintain the continuity of Mr Goodall’s employment. However, I do not consider it appropriate to make any order for lost pay under s.391(3). This is because Mr Goodall must bear a substantial degree of responsibility for the financial consequences of his dismissal. The absence of an order for lost pay will also reinforce to Mr Goodall that his conduct during his the Shift was inappropriate and must not happen again. [90] A separate order PR582258 will be issued giving effect to this decision. COMMISSIONER Appearances : Ms J Short , legal officer of the Construction, Forestry, Mining and Energy Union, for the applicant. Mr Y Shariff, counsel, along with Mr B Milne, solicitor, on behalf of the respondent. Hearing details: 2016. Newcastle: May, 26, 27. Final written submissions: Applicant, 9 June 2016 Respondent, 16 June 2016 Applicant, in reply, 20 June 2016 1 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 ; (1931) 45 CLR 359 at 373, 377-8. 2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 3 Ibid 4 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685 5 Ibid 6 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]. 7 Ibid 8 [2013] FWCFB 6191 9 PN310 10 PN298 11 PN299-300 12 PN371 13 PN366 14 PN425 15 PN430 16 PN431 17 PN436 18 PN439 19 PN440-2 20 PN446 21 PN450 22 PN467-474 23 PN471-4 24 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] 25 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 26 Previsic v Australian Quarantine Inspection Services Print Q3730 27 RMIT v Asher (2010) 194 IR 1 at 14-15 28 Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]. 29 [2013] FWCFB 6191 30 (1995) 185 CLR 410 at 465 31 4 years and 9 months 32 PN466 33 Mt Arthur’s closing submissions dated 16 June 2016 at [20(a)] 34 Mr Goodall’s show cause response at page 2 (annexure JG-3 to the statement of Mr Goodall dated 20 April 2016) 35 Pages 10 and 11 of the transcript attached to the show cause letter (annexure JG-2 to the statement of Mr Goodall dated 20 April 2016) 36 PN605 37 Statement of Mr Goodall dated 20 April 2016 at [73] 38 Statement of Mr Redman dated 17 May 2016 at [26] 39 Statement of Mr Redman dated 17 May 2016 at [24(b)] 40 PN1158 41 [2014] FWCFB 7198 42 Gurdil v The Star Pty Ltd [2013] FWC 6780 at [101] Printed by authority of the Commonwealth Government Printer <Price code C, PR581993>