Worker said co-workers regularly made comments about his partner, her ex-partner and sexually explicit video
A mine operator challenged his termination after two confrontations with a colleague, arguing he was acting as an "active bystander" to stop workplace sexual harassment of his partner.
The worker contended the employer's claims about threatening behaviour were exaggerated and that key witness statements supporting his version were never provided to the decision-maker.
The employer maintained the worker had a demonstrated history of losing his temper and engaged in aggressive and intimidating behaviour toward the colleague on two separate occasions in April and September 2024, breaching workplace policies while on a final written warning.
Employment history and bystander training
The worker had been employed with the mining company since 18 September 2020, becoming a technical specialist in February 2021. On 1 December 2022, the worker completed active bystander training on how to intervene with people displaying unacceptable behaviour.
The worker's partner was also employed with the employer, and their romantic relationship commenced at the end of 2022. The worker's evidence was his partner and by extension him were subjected to inappropriate behaviour from other employees.
The worker said other workers would regularly make comments about his partner, her ex-partner, her previous relationships and a sexually explicit video.
On 29 January 2023, the worker entered a crib hut where conversation stopped, leading him to believe they had been discussing him or his partner.
A verbal altercation occurred. An anonymous complaint and another worker's complaint both indicated that the worker spoke aggressively.
The other worker's complaint included that the worker followed him out of the crib hut, wanted to fight him and made threats. The worker accepted he had some "choice words" with the other worker outside. On 24 April 2023, the worker received a final written warning for the incident.
At the start of 2024, the worker had conversations with supervisors about issues regarding his partner. He said he had spoken to supervisors multiple times about harassment but never elaborated because of the salacious nature, as he did not want to add more rumour about his partner.
A supervisor told him that without proof or people coming forward he couldn't do anything. The worker said he was trying to keep some dignity for his partner in the process.
First confrontation with colleague
On 8 April 2024, the worker told supervisors he would speak to the colleague about his behaviour. The supervisors gave him permission.
On 9 April 2024, the colleague made a comment about the worker's skills as an operator. The worker initiated a text exchange asking to speak to the colleague.
Later in the shift, the pair had a conversation outside of the crib hut. The worker's evidence was he confronted the colleague about comments made and the colleague denied them. After that conversation, the two got into a vehicle together.
The colleague did not make any complaint about the worker's conduct on 9 April until after the 6 September incident.
A field officer said he saw the worker and colleague walk about 50 meters away from the crib hut. He said he was too far away to hear exactly what was being said, but he could make out some swear words. However, he agreed he could not hear what was said and could only see from a distance.
He agreed that the colleague could have been swearing at the worker. He agreed his statement did not record the colleague swearing at the worker.
The field officer agreed the worker's version should be preferred over his because at best he could see but not hear.
Bus stop confrontation
On 5 September 2024, the worker had a conversation with a water cart operator who revealed the colleague had been talking about his partner again to different groups of people.
On 6 September 2024, at the end of the worker's day shift, he was walking to get dinner and the colleague and trainer were sitting at the bus stop.
The worker said as he walked past, he noticed the colleague's head followed him. About 2 or 3 metres away from the group, he decided to have the conversation another time, and he walked past the group, at which point they all start laughing.
He turned around to see why they were laughing and walked toward the colleague so that they were about one and a half to two metres away from each other.
Multiple witnesses gave evidence about the September incident. A female operator's evidence was the worker stopped to talk to the colleague. She heard the worker say: "I heard you've been saying it."
She then heard the colleague say: "I'm not talking about it." She said the colleague's voice was raised so she turned around. She said the worker stood a normal conversational distance away from the colleague. The worker appeared upset. She said it was louder than normal conversation but not aggressively.
Another operator said the worker was stood about 1.5 metres away from the colleague and asked to speak with him privately. The colleague immediately raised his voice and declined.
The colleague got heated and called the worker a psycho. In his contemporaneous event statement form, the operator said the worker was trying to have the conversation in private and he only heard the words because the colleague was yelling at the worker.
The colleague chose to swear and yell at the worker in front of a lot of people.
A field officer said the worker was adamant about going somewhere else for a conversation. The worker kept asking the colleague to go with him, and the colleague kept saying no.
The colleague said the worker was "unstable" and that he wouldn't talk to him in private because he wanted witnesses. The field officer agreed that the colleague called the worker mentally unstable, which was making the worker upset. He said it was not right for the colleague to have called the worker mentally unstable.
Conflicting witness accounts
The field officer was referred to text messages he exchanged with the worker immediately following the incident and agreed he sent messages that included "clearly [colleague] is not going to be civil" and "You handled it alright considering he was being difficult."
The field officer claimed he sent these messages because he didn't want the worker to think he was taking sides. The field officer was referred to his event statement form completed on 6 September 2024. It was put to him that it did not say that the worker was aggressive or intimidating.
The field officer ultimately agreed that his first statement was more accurate.
Another operator said the worker was standing about a metre and a half away from the colleague who was sitting down. He distinctly remembers the worker saying: "It's not what I asked you to do, it's what I asked you not to do."
The worker was using normal hand gestures and was clearly upset. The worker at no point closed the distance between himself and the colleague. This operator said the colleague said to the worker: "You're not fit for work, you're mentally unstable."
He said he felt the colleague was trying to get a rise out of the worker. He did not believe the worker was aggressive.
The female operator's evidence was she honestly believed the worker was simply asking a question and the colleague was talking back but wasn't giving the worker any answers. The colleague appeared to be trying to annoy the worker more and stir him up.
She believed the worker was trying to have a calm grown up conversation but was being unnecessarily stirred up. She didn't believe the worker had any bad intentions he just wanted to have a mature conversation.
Missing witness statements
On 3 October 2024, the production manager reached out to a principal asset improvement officer to take over the investigation from the superintendent.
The investigator agreed she was not the final decision maker but made the recommendation to dismiss. It was put to the investigator that the production manager said he did not receive one operator's event statement form.
The investigator agreed it would be a problem if the production manager did not receive it. The investigator also agreed that this operator was not interviewed because he was on leave.
The former was informed that the incident occurred on 6 September 2024, and the worker was not dismissed until April 2025, and the operator was not on leave for all of that time.
The investigator agreed she had read the female operator's witness statement and event statement form. The investigator agreed none of that information was part of the investigation. The investigator agreed it was relevant information.
The investigator agreed another operator's information was not part of her investigation. The former accepted there was a potential that had she had the versions of these operators it could have changed her recommendation.
Dismissal decision process
The production manager said he decided it was appropriate to proceed to a show cause process because it had been substantiated that the worker had engaged in aggressive behaviour.
On 6 November 2024, a meeting was held to discuss the show cause letter. In November 2024, the worker provided his response. The production manager's evidence was that although the worker tried to take responsibility by apologising, he was still trying to justify his actions.
In or around 13 November 2024, the worker's partner submitted a complaint against the colleague and trainer involving sexualised conversation or jokes. The production manager said he received the results of the investigation into the worker's partner's allegations on or around 19 February 2025.
The production manager said he also considered that the investigation into the colleague's conduct had substantiated that he had called the worker "crazy" and "unstable."
The production manager said he did not consider this to mitigate the worker's behaviour. The production manager agreed his decision to dismiss was based on information provided by the superintendent and investigator.
The production manager was asked whether he was told by the superintendent or investigator that they had information from three operators about the incident that was inconsistent with the recommendation to dismiss. He answered no.
The production manager agreed he was now aware of the female operator's version. He did not agree the note would have affected his decision because the worker apologised in his show cause response.
It was put to the production manager that the apology was not an admission that he behaved in an aggressive or intimidating manner but was an expression of contrition for having been involved in the confrontation. The production manager did not accept he misconstrued the apology.
Commissioner's assessment
The Commissioner examined the evidence relating to the January 2023 incident and concluded the worker spoke in an unprovoked and aggressive manner. The Commissioner was not satisfied the worker threatened the other worker with physical violence.
The Commissioner was satisfied the worker was angry, had an aggressive demeanour and used inappropriate language.
The Commissioner examined the evidence relating to the April 2024 incident. A field officer was the only witness to give evidence besides the worker. The colleague provided a statement but was not available to give evidence.
The field officer's own evidence was the worker and colleague were about 50 meters away and he was too far away to hear exactly what was being said. The field officer conceded the worker's version should be preferred over his.
The Commissioner preferred the worker's evidence. The Commissioner accepted the worker's evidence that he confronted the colleague about comments made and did not engage in intimidating or aggressive behaviour.
In relation to the 6 September incident, the Commissioner noted that on key issues one operator's evidence was broadly consistent with the worker's version. His evidence indicated the colleague and not the worker was the aggressor.
The female operator's evidence remained broadly consistent with the worker's version. Another operator said the colleague said: "You're not fit for work, you're mentally unstable" and felt the colleague was trying to get a rise out of the worker. This operator did not believe the worker was aggressive.
The Commissioner stated the evidence tended more to support the conclusion that it was the colleague's unpleasant comments that caused the exchange to escalate, not the worker's conduct.
The Commissioner was satisfied the worker was upset and distressed about what he perceived as sexual harassment of his partner. The Commissioner stated: "I am not satisfied the incident on 6 September occurred as the [employer] concluded it had, or that the [worker] acted in an aggressive and intimidating manner."
Procedural failures identified
The Commissioner noted it seemed reasonably clear the production manager did not see one operator's version of the incident before he made his decision to dismiss the worker.
The Commissioner stated the production manager appeared to put considerable weight on an apology in the worker's show cause response as a concession he had acted in an aggressive and intimidating manner. It was the Commissioner's view the production manager misconstrued the apology.
The Commissioner stated: "It was a procedural failure on the [employer's] part that [one operator's] statement was never before [the production manager]. It was a procedural failure on the [employer's] part that [the female operator's] statement was never before [the superintendent], [the investigator] or [the production manager]. It was a procedural failure on the [employer's] part that [another operator] was never asked for a statement. These failures denied the [worker] the opportunity for those versions to be considered."
Having weighed all the evidence, the Commissioner concluded the employer had not established that the worker's conduct on either 9 April 2024, or 6 September 2024 was intimidating and aggressive behaviour.
The Commissioner was not satisfied the employer had a valid reason for dismissal. The Commissioner concluded the dismissal was harsh, unjust and unreasonable. The matter would be listed for directions on how to deal with the remedy.
