FEDERAL COURT OF AUSTRALIA

Laing O’Rourke Australia Management Services Pty Ltd v Haley [2024] FCA 1323

ORDERS

THE COURT ORDERS THAT:

1.    Declaration 2 made by the primary judge on 28 March 2024 be set aside.

2.    The proceedings be remitted to a judge of the Federal Circuit and Family Court of Australia other than the primary judge for determination in accordance with these reasons and in particular those set out at [277]-[454].

3.    The appeal be otherwise dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SHARIFF J:

A.    INTRODUCTION

1    This is an appeal from the judgment, declarations and orders of the Federal Circuit and Family Court of Australia (FCFCOA) in Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 5) [2024] FedCFamC2G 286 (primary judgment or PJ). The event at the centre of the proceedings below, and the central subject matter of the primary judgment, was a so-called Incident that occurred some four years ago, late in the evening of 2 July 2020 and the early hours of the following morning, during a gathering at a property located in Pambula (the Pambula Property) on the South Coast of New South Wales. It was an after-hours gathering of work colleagues who were celebrating a milestone achieved on a work project.

2    As a result of matters that were said to have occurred during the Incident and in its subsequent investigation, the appellant (LOR) summarily terminated the employment of the respondent (Mr Haley) on the ground that he had engaged in serious misconduct. Mr Haley commenced proceedings in the Court below, essentially propounding three causes of action relevant to the present appeal which were in substance that:

(a)    his employment had been wrongfully terminated because he did not engage in misconduct warranting summary termination and was thereby entitled to damages;

(b)    his dismissal from employment was adverse action engaged in because he had exercised one or more workplace rights and therefore contrary to s 340(1)(a) of the Fair Work Act 2009 (Cth) (FW Act); and

(c)    LOR contravened s 117(1) of the FW Act by failing to give him notice of the termination of his employment in the manner prescribed by that subsection.

3    The primary judge determined questions as to liability separately to the determination of damages, compensation and penalty (if any). In substance, the primary judge found that LOR had not discharged its onus of establishing serious misconduct, and that the summary termination of Mr Haley’s employment was therefore a repudiation of the employment contract. Further, the primary judge found that Mr Haley had established that he had exercised workplace rights in some respects and that, in relation to the termination decision, LOR had not rebutted the presumption arising by operation of s 361 of the FW Act that that decision had been taken “because of” the exercise of those rights. The primary judge also found that LOR had contravened s 117(1) of the FW Act by failing to give Mr Haley notice of the termination of his employment in the (apparent) manner prescribed by that subsection.

4    LOR appeals from a number of factual and legal findings made by the primary judge and his Honour’s ultimate conclusions as to liability. The primary judge has since made a determination as to the assessment of damages and compensation, which is now the subject of a separate appeal instituted by LOR: see Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 8) [2024] FedCFamC2G 779 (Compensation Judgment). The penalty phase of the proceedings below has been stayed pending the outcome of this appeal.

5    The primary judgment is lengthy. It considers in detail a vast number of documentary materials, as well as the oral evidence given at trial, resulting in a judgment of 675 paragraphs and over 300 pages in length. Given the grounds of appeal that were advanced by LOR, the hearing and determination of this appeal has involved an extensive review of the evidence in the proceedings below. Regrettably, this has meant that this judgment is also a lengthy one.

6    For the reasons set out below, I have rejected the majority of the grounds of appeal advanced by LOR.

7    Much of LOR’s case below as to Mr Haley’s alleged misconduct rested upon the allegation that during the course of the Incident he had said and directed to the owners of the Pambula Property, Mr and Ms Pointon (the Pointons), the words, “go home you fucking silly old cunt… Go home old man, old lady. Go home, go home, go home, go home”: PJ [142]. LOR ran its case below on the basis that it was the totality of these words which were the “Offensive Words”. The primary judge found, and LOR does not dispute, that the case was never put on the basis that Mr Haley’s conduct in saying the words “Go home old man, old lady. Go home, go home, go home, go home” were sufficient to establish misconduct. LOR’s case in this regard required it to establish that Mr Haley had said the particularly vulgar and profane words “go home you fucking silly old cunt” to and directed them towards the Pointons.

8    The outcome of this appeal does not turn on whether the words “Go home you fucking silly old cunt” were offensive. Rather, in large measure, the outcome of this appeal turns upon whether error has been established based on a real review of the evidence. That evidence needs to be considered in the context of: (a) the specific case advanced by LOR; and (b) the deliberate forensic choices made by LOR in the way it conducted that case.

9    LOR called no evidence from any witness as to the facts of the Incident, including the Pointons. The only testimony given before the primary judge as to the facts of the Incident was that given by Mr Haley. Instead of calling any witnesses of fact as to the Incident, LOR tendered into evidence the accounts given by witnesses during LOR’s internal investigation into the Incident, together with the final Investigation Report. This evidence consisted of the accounts given by other employees of LOR who were present during the Incident (the Witness Accounts) and the accounts given by the Pointons (the Pointons’ Accounts). These documents were admitted into evidence for a non-hearsay purpose, over Mr Haley’s objection (who was self-represented in the proceedings below). Thereafter, both Mr Haley and LOR relied upon those documents for hearsay purposes and the primary judge did likewise in the primary judgment: see PJ [10]. The primary judge found that LOR did not submit that the Witness Accounts should be accorded little or no weight, and made no submission about what credit should be accorded to those statements. It followed that the Witness Accounts were relied upon in the proceedings below as truthful accounts by both LOR and Mr Haley. LOR did not challenge these findings.

10    LOR principally relied upon an Audio Recording that Ms Pointon had taken during one part of the Incident which recorded Mr Haley saying (but not in immediate sequence) the Offensive Words. The Audio Recording was taken without the consent of any person who was present and did not purport to record the entirety of the Incident. LOR did not challenge the primary judge’s finding that the particularly profane words “go home you fucking silly old cunt” are only audible on the Audio Recording with concentrated effort. My own assessment accords with the primary judge’s finding and I would add that those words are barely audible without intentionally seeking to hear them out. LOR challenges the findings made by the primary judge that these words were not said or directed to the Pointons. However, LOR did not gainsay that not one of the Witness Accounts reported that Mr Haley had said these words, let alone that he had said them to or towards the Pointons. Nor did it gainsay that the Pointons did not say so in their accounts. More tellingly, during its investigation, LOR never asked a single witness, let alone the Pointons, whether they heard these words, and, if so, whether they were said or directed towards the Pointons. Yet, in the appeal, LOR invited me to make findings to the contrary by drawing inferences from the Audio Recording.

11    LOR did not engage with the sequence of events that occurred during the Incident that led up to the point at which the Offensive Words were spoken. In particular, LOR paid little regard to the fact that the Pointons had entered the Pambula Property unannounced well after midnight at a time when the occupants were seemingly intoxicated, made a line towards one of the occupants and wrested away a television remote from him, and came into physical contact with at least one of the occupants. Nor did LOR engage with the fact that on the Witness Accounts (that LOR itself tendered) Mr Pointon was yelling to and at all those present to “fucking get out” and when told that he could not do that, Mr Pointon’s riposte was to say “I can do whatever the fuck I want”. There followed a commotion with various expletives being exchanged by all those who were present. The primary judge set out at PJ [205]-[209] the serious deficiencies in LOR’s submission as to what occurred during the Incident, which failed to engage with the other substantial evidence contained in the Witness Accounts. Importantly, this led the primary judge to reject the notion that what LOR submitted occurred at the Incident “[went] anywhere near to fairly representing the evidence about what occurred during the Incident, or Mr Haley’s conduct in the course of that Incident”: PJ [209]. LOR did not challenge these findings.

12    The one substantive area in respect of which LOR’s appeal has succeeded relates to the primary judge’s findings in relation to Mr Haley’s adverse action case, and, in particular, the primary judge’s finding that Mr Simon Chatwin, a Commercial Director of LOR, was not the person who made the decision to terminate Mr Haley’s employment, or did not make that decision alone. For the reasons that follow, I have concluded that the primary judge erred in reasoning to this conclusion and, regrettably, the question as to whether Mr Chatwin was the sole decision-maker has to be remitted to a different judge.

13    Another point needs to be made at the outset. It is most regrettable that, both in the proceedings below, and on appeal, findings and conclusions have been made about the conduct of the Pointons and others involved in the Incident, without any of them having been called to give evidence. That is a direct consequence of the manner in which LOR elected to conduct the proceedings.

14    In order to best deal with the issues raised and explain my reasons for making the orders that I have made, these reasons are organised as follows:

(a)    First, I provide a high-level summary of the relevant events and of certain forensic choices made by the parties below and in the appeal (Section B);

(b)    Second, I set out the grounds advanced by LOR in its Amended Notice of Appeal (Section C);

(c)    Third, I explain the principles of appellate review relevant to the determination of the appeal by this Court (Section D);

(d)    Fourth, I set out (in some detail) the relevant evidence before the primary judge and the unchallenged findings of fact made by his Honour (Section E);

(e)    Fifth, I turn to the various errors of fact alleged by LOR (Section F);

(f)    Sixth, I turn to LOR’s claim that the primary judge erred in finding that Mr Haley had not engaged in misconduct warranting summary dismissal and that LOR had thereby repudiated his contract of employment (Section G);

(g)    Seventh, I address the errors of law alleged by LOR, namely that the primary judge erred in finding that:

(i)    LOR had engaged in adverse action as a result of failing to call as a witness the person who the primary judge determined had made the decision to terminate Mr Haley’s employment (Section H.1); and

(ii)    LOR had breached s 117(1) of the FW Act in the way notice of termination had been given to Mr Haley (Section H.2);

(h)    Eighth, I address LOR’s contentions that it was denied procedural fairness, including as a result of delay between the hearing of the proceedings below and the delivery of the primary judgment and for other reasons (Section I);

(i)    Finally, I conclude and dispose of the appeal (Section J).

15    For convenience, a glossary of relevant persons and organisations referred to throughout the judgment is attached as a Schedule to these reasons.

B.    A SUMMARY OF THE RELEVANT EVENTS AND THE LITANY OF FORENSIC CHOICES MADE BY LOR

16    Given the length of the judgment below, and these reasons, it is convenient to provide a summary of the relevant events and, as part of that summary, identify the forensic choices that were made in the proceedings below and in this appeal.

B.1    The Incident – a summary

17    In January 2020, LOR had been engaged to undertake recovery works following the bushfires that had devastated the South Coast region in the Australian summer of 2019/2020 (Bushfire Project). In order to aid these efforts, LOR’s employees had come to occupy various premises on the South Coast on a temporary basis so that they could manage and perform the works that were being undertaken. The Pambula Property was one such premises and the booking for it had been arranged through the website “stayz.com.au” by Central Travel Team (CTM), LOR’s external travel provider.

18    As at 2 July 2020, the Pambula Property was, and was to be, occupied by five employees of LOR (Mr Andrew Byrne, Mr Shane Neely, Mr Adam Neely, Mr Shaun Boyle and Mr Jamie Boyle), who were referred to as the Pambula Property Residents, but the precise legal arrangement governing their occupation (lease, licence and whether it was LOR or the Pambula Property Residents that were the parties to that arrangement) was less than clear on the evidence adduced at trial. Neither party adduced evidence as to the terms upon which the Pambula Property came to be occupied by the Pambula Property Residents. As noted above, the owners of the Pambula Property were the Pointons. For reasons unknown, the Pointons were referred to in the proceedings below as “Mr P” and “Ms P” and they are referred to in this way in relevant extracts from the primary judgment, but I will otherwise refer to them as the Pointons, or Mr and Ms Pointon as the context permits.

19    In order to celebrate a “commercial milestone” on the Bushfire Project, the Pambula Property Residents had arranged for a gathering to occur at the Pambula Property on 2 July 2020 involving a barbecue (BBQ) and the consumption of drinks including alcohol. There was evidence before the primary judge that such gatherings had been organised and occurred previously at other locations including at another house in Batemans Bay on the South Coast of New South Wales. LOR did not contest this evidence.

20    There was evidence before the primary judge that the Pambula Property Residents had informed Ms Pointon that such a gathering would be organised. One of the Residents, Mr Byrne, told LOR that he had made Ms Pointon aware that a BBQ with work colleagues would be held at some point during the stay, and Ms Pointon had said that the gathering could go ahead and they could make “as much noise as [they] wanted” so long as the gathering was kept inside and out the front but not on the back balcony of the Pambula Property: PJ [128]. This was corroborated by other accounts: PJ [117]-[118]. LOR did not contest this evidence and I will return to the significance of this later in these reasons.

21    Among those invited to the gathering, and who attended, was Mr Haley. It was common ground that Mr Haley was the most senior employee of LOR who attended the gathering.

22    It was common ground that Mr Pointon’s elderly mother resided in a separate part of the Pambula Property. However, it was also not challenged that, while this fact was known to the Pambula Property Residents, it was not known to the other persons who attended the gathering at the Pambula Property, including Mr Haley, until much later in the evening of 2 July 2020 or in the early hours of the following morning.

23    The social gathering was uneventful until much later in the evening of 2 July 2020. Mr Pointon received a call from his elderly mother complaining about the noise from the gathering. This initially led to Mr Pointon attending the Property and asking Mr Byrne to bring an end to the gathering, and later Ms Pointon also calling Mr Byrne and making the same request. The Pointons later attended the Pambula Property. By this time, it was well after midnight. There followed the events which came to be described as the Incident. The precise sequence of events, including what was said and by whom, were all apparently in dispute. However, the apparent dispute about the facts and circumstances relating to the Incident was, and is, a curiosity in circumstances where, as I have already observed, LOR called no evidence in the proceedings below from any witnesses of fact to the Incident. Despite LOR’s position, there were significant aspects of the facts of the Incident that were in dispute. Precisely how these factual disputes were to be resolved was left unexplained and undeveloped by LOR both in the proceedings below and on appeal.

24    The following day, 3 July 2020, senior employees of LOR received notice (on a second hand basis) of a complaint made by the Pointons about the Incident including in relation to the conduct of Mr Haley. Thereafter, LOR made a decision to suspend Mr Haley and others from their employment and conducted an investigation. As part of that investigation, LOR obtained accounts from Mr and Ms Pointon, being the Pointons’ Accounts, and Mr Haley, as well as the Witness Accounts. On the whole, the evidence (which is set out below) that LOR obtained from others who attended the gathering pointed towards the Pointons having been the initiators and, at least the initial, aggressors of the Incident. Despite the tenor of that evidence (which LOR had available to it), LOR not only did not call that evidence, it did not call evidence from the Pointons to seek to contradict it. LOR apparently did so on the basis that those involved in the investigation into the Incident had formed the view that the relevant witnesses may have spoken with each other. Other than an oblique suggestion to that effect contained in the Investigation Report prepared by LOR, there was no evidence before the primary judge as to any question of collusion amongst the witnesses and, as such, no finding was made to that effect. Accordingly, it is not a basis upon which the present appeal could be determined.

25    The Pointons later supplied to LOR the Audio Recording and a separate video recording capturing parts of the events of the Incident. The Audio Recording records Mr Haley uttering the words “go home you fucking silly old cunt” and also later on the words “Go home old man, old lady. Go home, go home, go home, go home”: PJ [142]. LOR defined the whole of these words as the Offensive Words: PJ [142]. The primary judge did not accept that LOR’s definition of the Offensive Words reflected the true sequence of events. The primary judge observed that it was not part of LOR’s case that the words “Go home old man, old lady. Go home, go home, go home, go home” were of themselves offensive and that these words were not relied upon by LOR to summarily terminate Mr Haley’s employment. Rather, LOR’s case was that it was the whole of the words that constituted the conduct in respect of which Mr Haley’s employment was terminated. In particular, it was critical to LOR’s case that Mr Haley had said the words “go home you fucking silly old cunt” to and towards the Pointons. On appeal, LOR did not cavil with this characterisation of its case.

26    Thus, a critical factual integer of LOR’s case below and on appeal was that Mr Haley had said the words “go home you fucking silly old cunt” to and directed them towards the Pointons. It was submitted that this conduct in all the circumstances was offensive and unbefitting of a person occupying Mr Haley’s position, especially given that his conduct occurred in the presence of subordinate employees.

27    The Audio Recording was seized upon by those conducting the investigation as demonstrating misconduct on the part of Mr Haley. The primary judge found that Mr Haley had uttered the Offensive Words, but also in substance found that the particularly offensive words, “go home you fucking silly old cunt”, could only be faintly heard on the Audio Recording due to foreground and other noise. As explained later in these reasons, these findings are not challenged and accord with my own assessment of the evidence. Further, as explained below, the acontextual and microscopic examination of the Offensive Words as recorded on the Audio Recording, detached from what else occurred and was occurring up until this point in time of the Incident and thereafter gives the Offensive Words a prominence that no one present at the time or at any time thereafter gave them (other than those involved in its granular assessment in the aftermath of the Incident). The fact is that no evidence was led from the Pointons or anyone else present that they heard the Offensive Words, or heard them being directed towards the Pointons. Nor did the Pointons complain to LOR that they heard the Offensive Words. And, no one as part of LOR’s investigation team explored this fact, which became the centrepiece of LOR’s case, in the communications, interviews and discussions that were had with the Pointons and the other witnesses during the investigation.

28    LOR’s position in the appeal was that it did not matter that the Pointons did not hear the words, “go home you fucking silly old cunt”, or did not complain about them because: (a) Mr Haley had put himself in a position where he had uttered those words including in the company of subordinate staff and members of the public (even if they did not hear those words being uttered); (b) there was a risk that the Pointons would hear those words if and when they played the Audio Recording and that the Audio Recording could be widely distributed; (c) Mr Haley had not sought to de-escalate the Incident; and (d) Mr Haley had intentionally lied during the course of the investigation by not admitting that he had said the Offensive Words. These are all matters that I deal with below.

29    After the preparation of several drafts, a final Investigation Report was completed and submitted to Mr Haley’s manager, Mr Chatwin. The report concluded that the complaint made against Mr Haley was substantiated. This then led to a “show cause” process including the holding of a meeting with Mr Haley on 22 July 2020 (Show Cause Meeting). There was no evidence led from the author(s) of the Investigation Report or those who conducted the investigation, or who participated in the show cause process, including in the steps leading up to and including Mr Haley’s employment being terminated, other than from Mr Chatwin. The absence of such evidence took on significance as part of Mr Haley’s adverse action case, with the primary judge ultimately finding that Mr Chatwin was not the decision-maker or not the only decision-maker.

30    On 24 July 2020, LOR terminated Mr Haley’s employment on the basis that he had engaged in serious misconduct, both during the Incident and in the course of the subsequent investigation. The termination letter dated 24 July 2020 (Termination Letter) identified the following three grounds as the basis for termination:

1.    Lying to the investigator charged by Laing O’Rourke to undertake an investigation into the matter;

2.    Serious breaches of company policies, including the Code of Conduct;

3.    Engaging in conduct that caused imminent and serious risk to the reputation of Laing O’Rourke.

B.2    LOR’s pleaded case and submissions below

31    Mr Haley commenced proceedings on 26 October 2020 in the Court below, alleging (amongst other things) wrongful termination and adverse action in relation to the decision to terminate his employment. In those proceedings, LOR defended the claim as to wrongful termination on the basis of the three grounds identified above. Its pleaded position was as follows:

(a)    First, LOR pleaded that the investigator appointed by LOR to investigate the allegations made against Mr Haley found that he had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards the Pointons during the Incident, and that Mr Haley had breached section 1 of LOR’s Code of Conduct and section 3 of its Travel Policy;

(b)    Second, LOR referred to the following statements from Mr Haley’s statement dated 8 July 2020 (what I later refer to as the 8 July Haley Statement):

(i)    that he “didn’t feel it was necessary to go outside” and had “remained inside and was at least 15-20 yards from [Mr Pointon] with the bi-fold doors also providing a physical barrier”;

(ii)    that he “continued to remain inside the property until the police arrived”;

(iii)    that he was “unsure what was said and what happened due to being inside”;

(iv)    that he “contributed to the commotion by saying things like you are out of order and you need to leave”;

(v)    that he believed that he and other attendees at the party “were in danger” of being “attacked” by Mr Pointon;

(vi)    that Mr Pointon “represent[ed] a risk and a danger to the safety and welfare of the residents” and that Mr Pointon had “caused [Mr Haley] physical harm”; and

(vii)    that the allegations made by Mr and Ms Pointon regarding Mr Haley’s conduct and the “grounds for [Mr Haley’s] suspension” were “untrue”;

(c)    Third, LOR referred to a phone interview with Mr Haley on 8 July 2020 by the investigator in which Mr Haley was asked whether, at any point during the Incident he had “address[ed] the owners”, and that Mr Haley had replied “[t]hat’s covered in my statement”;

(d)    Fourth, LOR stated that on 9 July 2020, the investigator had written to Mr Haley inviting him to explain and/or clarify “inconsistencies” between his written statement and information that had been provided by the Pointons and “other persons who attended the party”, which included a sound recording of Mr Haley saying the Offensive Words; and that in response to that letter (in a document which I later refer to as the Response to the 9 July Letter), Mr Haley:

(i)    stated that he had been “subjected to a physical assault by Mr Pointon”, in relation to which Mr Pointon was “seeking to avoid criminal charges”;

(ii)    described the person who could be heard in the sound recording saying the Offensive Words as “the individual”, without admitting that it was him;

(iii)    stated that he had “no change to make” to his written statement regarding whether he said the Offensive Words;

(iv)    stated that Mr and Ms Pointon had made “false and malicious allegations” against him; and

(v)    stated that he “continue[d] to completely refute the allegations”;

(e)    Fifth, LOR stated that, in the course of the Show Cause Meeting on 22 July 2020, Mr Haley:

(i)    admitted that he had used offensive language toward Mr and Ms Pointon during the Incident by saying to them the Offensive Words;

(ii)    stated that he had not been subjected to a physical attack by Mr Pointon; and

(iii)    stated that he did not consider Mr Pointon’s conduct during the Incident to be sufficiently serious to warrant criminal charges or reporting the matter to LOR;

(f)    Finally, LOR pleaded that:

(i)    by reason of the statements made in the Show Cause Meeting (set out above at [31](e)), the statements in the 8 July Haley Statement (set out above at [31](b)), during the phone interview on 8 July 2020 (set out above at [31](c)) and in the Response to the 9 July Letter (set out above at [31](d)), were false; and that Mr Haley knew that those statements were false at the time he made them; and

(ii)    Mr Haley was interviewed by the investigator on 3, 4 and 8 July 2020 and was “provided with numerous opportunities to respond to the allegations and findings made against him” including at the Show Cause Meeting.

32    In summary, then, LOR’s pleaded position in relation to the termination of Mr Haley’s employment was that it was justified because he had lied to the investigator (in the sense that there were said to be inconsistencies between his earlier statements and later statements, and that the earlier statements were known to be false at the time he made them); and that he engaged in wilful or deliberate behaviour that was inconsistent with the continuation of his employment and which caused imminent and serious risk to the reputation of LOR (in the sense that he had acted in an aggressive, inconsiderate, deplorable and intimidating manner towards Mr and Ms Pointon during the incident; and had breached section 1 of the Code of Conduct and section 3 of the Travel Policy).

33    In its closing submissions in the Court below, LOR contended that the termination of Mr Haley’s employment on the ground of serious misconduct was warranted on “one or more of the following grounds”.

34    First, LOR contended that, by his conduct in becoming intoxicated and saying the Offensive Words to Mr and Ms Pointon, Mr Haley committed “misconduct” within the meaning of cl 2 in section 4 of his employment contract. It contended that the language was obscene, highly offensive and directed to two members of the public whose property was being rented by LOR and used by its employees in connection with their work on the Bushfire Project, and that his conduct was “entirely unbefitting of someone who was employed in a senior management role” at LOR.

35    Second, LOR contended that Mr Haley’s conduct also fell within the specific category of conduct that caused imminent and serious risk to LOR’s reputation within the meaning of cl 2(b) in section 4 of the employment contract, because:

(a)    Mr and Ms Pointon knew that the persons staying at the Pambula Property were employed by, or affiliated with, LOR, such that Mr Haley’s conduct was capable of reflecting poorly upon his employer in the eyes of the Pointons;

(b)    proof of actual damage to LOR’s reputation was not required; rather, an “imminent and serious risk” to the company’s reputation was sufficient to warrant summary dismissal. It was submitted that Mr Haley’s behaviour gave rise to an imminent and serious risk to LOR’s reputation in the eyes of Mr and Mrs Pointon and the other attendees at the party (including external contractors), including because the police were called to the property, and that it did not matter whether the conduct was witnessed by a larger audience or published to the world at large; and

(c)    this was especially so in light of the “commercial sensitivity” of the Bushfire Project and the “amount of publicity in the media regarding LOR’s role as the lead contractor in that project”. In this regard, LOR extracted a passage of cross-examination from Mr Chatwin where he stated (amongst other things):

… So having a party, swearing at people, making allegations, changing those allegations, there’s a high chance that Mr and Mrs Pointon will go and tell their friends and people. It will become public knowledge what happened. Someone will have a link to the story. Someone will make it into, you know, a big issue in the press and then suddenly all those fears that we have come true and materialise because of one crazy – you know, one crazy night and event…

(Emphasis added).

36    Third, LOR contended that Mr Haley had engaged in “wilful or deliberate behaviour that was inconsistent with the continuation of his employment” for the purposes of cl 2(1) of his employment contract, because he had made certain “non-disclosures and statements during the investigation that he knew to be incorrect”. In this regard, LOR relied upon the same apparent “inconsistencies” which it had pleaded in response to Mr Haley’s claim (and which are set out in the summary of LOR’s pleaded case at [31]-[32] above). As I will return to below, LOR’s case as it was put was that Mr Haley had knowingly made false statements and had been dishonest. As I will also later explain, the case put on appeal was said to one based on “deliberate lies” made by Mr Haley.

37    As noted above, the primary judge upheld the majority of Mr Haley’s claims. In coming to these conclusions, the primary judge largely but not exclusively accepted the evidence of Mr Haley, and although not rejecting outright the credit of Mr Chatwin, who LOR claimed was the decision-maker for the purposes of the decision to terminate Mr Haley’s employment, did not accept Mr Chatwin’s evidence in various respects.

B.3    LOR’s forensic choices

38    It will be apparent from the above that the parties, but especially LOR, made a number of forensic choices in the conduct of the proceedings below, and in the appeal.

39    First, there were only two witnesses called to give evidence, and who were cross-examined. These were Mr Haley in his own case and Mr Chatwin in LOR’s case.

40    Second, despite accepting in the proceedings below that it bore the onus of establishing that Mr Haley had engaged in serious misconduct, LOR made the forensic choice not to call the Pointons, or any other eyewitnesses of fact to the Incident.

41    Third, in the proceedings below, LOR sought to tender the final Investigation Report which included schedules containing the Pointons’ Accounts and the Witness Accounts: PJ [9]. Despite the matters I have already set out above at [9], and there being no grounds of appeal in this regard, LOR contended in the appeal that I should disregard the Witness Accounts and give them no weight. In the following exchange, Senior Counsel for LOR stated as follows (at T26.5-42):

HIS HONOUR: Okay. So your submission is I should have no regard to any of the records of interview?

COUNSEL: Yes, your Honour. For this purpose.

HIS HONOUR: Including the complaints from [the Pointons]?

COUNSEL: Yes, your Honour. It’s not direct evidence. It’s not been challenged in Court. It’s admitted under the business records as the investigation report, which is part of the business records. That doesn’t make it credible. It just makes it part of the evidence supportive of the case.

42    Counsel for Mr Haley made the contrary contention that I should have regard to the Witness Accounts as these were part of the evidence below and this was not challenged (at T117.1-26):

HIS HONOUR: And there’s no appeal ground from them on this point. And there’s no cross appeal or notice of contention from you on this point?

COUNSEL: No, there’s not. And we - - -

HIS HONOUR: Sorry, it wouldn’t be a cross appeal. It would be a notice of contention.

COUNSEL: Yes.

HIS HONOUR: So, the question I had for Mr Hatcher and the question I have for you, is when I conduct a real review of the evidence, you say given that neither party raises this point on appeal and it was admitted…a real review of the evidence includes a review of all the records of interview.

COUNSEL: Well, the records of interview - - -

HIS HONOUR: Are part of the evidence.

COUNSEL: Yes. Yes. They are.

HIS HONOUR: And so, I would not be in error in referring to them.

COUNSEL: No.

43    In the absence of any ground of appeal or notice of contention challenging the course taken by the primary judge in having regard to the Investigation Report and records of interview for the truth of their contents, I have proceeded on the basis that the Pointons’ Accounts and Witness Accounts formed part of the unchallenged evidence before the primary judge for both hearsay and non-hearsay purposes.

44    Fourth, both by reason of the Termination Letter and its pleaded case, as well as the submissions it made in the proceedings below, to the extent that LOR contended that Mr Haley had misled or lied to it during the course of the investigation, LOR put its case on the basis that Mr Haley had made statements that were knowingly false and, therefore, that he had engaged in conduct that was intentionally dishonest. This was confirmed in the following exchange with Senior Counsel for LOR (at T62.8-29):

HIS HONOUR: I was going to raise that with you. In various parts of your written submissions, you say that [Mr Haley] has deliberately lied. That’s a very serious allegation – very serious. It’s not just that the evidence he gave is false or untrue, but you say he’s deliberate. He was deliberate in lying in the show cause meeting. Is that your submission?

COUNSEL: Not in the show cause meeting. I don’t think that we said that, your Honour. But, certainly, we say he was deliberately - - -

HIS HONOUR: The termination letter says that:

You have been dishonest.

COUNSEL: Yes.

HIS HONOUR: Well, how do I take that?

COUNSEL: Well, that - - -

HIS HONOUR: Deliberate?

COUNSEL: Deliberately dishonest, yes.

(Emphasis added).

45    It follows that the way I was invited to consider LOR’s case below was that it had advanced a case of deliberate dishonesty.

46    Fifth, in the lead-up to the proceedings below, Mr Haley sought to issue subpoenas seeking that various persons attend to give evidence on the basis that he contended that there were some 20 people involved in making the decision to terminate his employment. LOR objected to the subpoenas and they were successfully set aside. The primary judge gave reasons for refusing to grant the application: Haley v Laing O’Rourke Australia Management Services Pty Ltd (No 4) [2022] FedCFamC2G 743 (Subpoena Judgment). As explained below, LOR was on notice that the question as to whether Mr Chatwin had made the decision to terminate, or was the sole decision-maker in that regard, was likely to be a critical issue in the trial. Despite this, it elected to call evidence only from Mr Chatwin, and not anyone else.

47    Sixth, the appeal was conducted on particular challenges to findings of fact and conclusions and certain matters of law but in other respects there was no challenge to the findings made by the primary judge. As would be expected, I have only determined those matters which were sought to be challenged.

48    Seventh, in the ordinary course, this Court’s Practice Note “APP 2: Content of Appeal Books and Preparation for Hearing” (Appeals Practice Note) limits the parties’ submissions in chief to 10 pages. However, allowing for the fact that the primary judgment was lengthy and LOR sought to challenge various findings of fact, I made orders directing each party to file submissions of up to 25 pages. Paragraph 4.3 of the Appeals Practice Note provides as follows:

4.3     Where a party intends to challenge any of the primary Judge’s findings of fact, the outline must:

(a)     identify the error (including any failure to make a finding of fact);

(b)     identify the finding that the party contends ought to have been made;

(c)     state concisely why, in the party’s submission, the finding, or failure to make a finding, is erroneous; and

(d)     refer to the evidence to be relied upon in support of the argument.

49    Further, paragraph 3.1 of the Appeals Practice Note requires compliance with Division 36.5 of the Federal Court Rules 2011 (Cth) in relation to Appeal Books. Rule 36.54 sets out the requirement for the Appeal Book to comprise Part A, Part B and Part C. Relevantly, Part B contains a “Comprehensive Reference Index” comprising a complete index of the record of the evidence from the proceedings below. It is important to note that Part B is an index. It does not contain the universe of evidence from the proceedings below. Instead, r 36.54(c) of the Rules requires the parties to produce Part C, “being only the exhibits and evidence to which the parties refer in the parties’ submissions, arranged in the same order as the Comprehensive Reference Index…”.

50    The combined effect of paragraph 4.3 of the Appeals Practice Note and r 36.54 is that the party seeking to challenge findings of fact must identify with precision not only the alleged error of fact, but also provide references to the evidence in support of its contentions which are then to be included in Part C.

51    Despite these requirements being made clear, several parts of LOR’s submissions referred to materials in Part B. These were references to an Index. The materials were not included in Part C. There was an assumption made that this Court on an appeal had access to the underlying evidence from the proceedings below as contained in the Part B Index. It does not necessitate saying this, but the assumption was fundamentally wrong. Nor does it necessitate stating that the only material to be included in Part C are those materials to which the parties have referred in their submissions.

52    Prior to the hearing of the appeal, Mr Haley tendered, in effect, an addendum to Part C which it was submitted consisted of evidence from the proceedings below that he wished to rely upon, but which LOR had not agreed to include in Part C. Following the conclusion of the appeal, I granted leave for LOR to supplement the Part C documents with its own bundle of additional documents.

53    The result is that I had no confidence by the conclusion of the appeal, and I had no confidence when writing this judgment, that the parties had provided to the Court all of the evidentiary material from the proceedings below upon which they relied in support of their respective contentions. Despite this, I was invited to conduct a real review of the evidence. It suffices to note that the position is highly unsatisfactory.

54    Finally, several parts of LOR’s submissions contended that certain factual findings be “quashed”. It goes without saying that this Court does not quash factual findings; it corrects legal and factual error. If persuaded that those factual and legal errors affect or alter the ultimate findings and orders made as to liability as reflected in the orders and declarations made by the Court below, the Court may set aside those orders and declarations.

55    At times, LOR’s appeal was conducted on the basis that the finding of a single factual error in the primary judge’s reasons would result in the opposite finding of fact being made, or that it was thereby a sufficient basis to set aside the primary judge’s orders and declarations as to liability. Neither of these consequences necessarily flow from a finding of factual error. In at least one other respect, LOR submitted that its ground of appeal was “not relevant” to the disposition of the appeal (a point to which I will return below when discussing that relevant ground).

C.    AMENDED NOTICE OF APPEAL

56    In the proceedings below, Mr Haley was self-represented while LOR was represented by Counsel. There were significant disputes as to the facts and law which fortunately do not need to be rehearsed because all that needs to be determined are the grounds set out in the Amended Notice of Appeal.

57    Relevantly, by its Amended Notice of Appeal, LOR challenges findings of facts and law, and claims that it was denied procedural fairness, as follows.

C.1    Challenges to findings of fact

58    LOR claims that the primary judge made a number of findings of fact which were contrary to the evidence, contrary to the weight of the evidence or involved the primary judge misdirecting himself as to relevant issues, including that:

(a)    the Pointons did not hear or notice the Offensive Words: PJ [216](c) (First Alleged Factual Error);

(b)    the Pointons had no right to demand that the tenants leave the property: PJ [538](c) (Second Alleged Factual Error);

(c)    Mr Haley could not see Ms Pointon at the time he uttered the Offensive Words: PJ [215](m) (Third Alleged Factual Error);

(d)    to the extent Mr Haley made statements in an email (which I refer to below as the “Reflection Email”) with which he did not agree, he was unfairly induced to do so: PJ [416] (Fourth Alleged Factual Error);

(e)    Mr Haley had no actual recollection as at 20 July 2020 of uttering the Offensive Words: PJ [409] (Fifth Alleged Factual Error);

(f)    there was no genuine investigation by LOR of the complaints against Mr Haley: PJ [18] (Sixth Alleged Factual Error);

(g)    the person identified by LOR (Mr Chatwin) as having made the decision to dismiss Mr Haley was not, in fact, the person who made that decision: PJ [503] (Seventh Alleged Factual Error);

(h)    where the person who made the decision to dismiss Mr Haley was not called by LOR to give evidence in the proceedings, the rebuttable presumption presented in s 361 of the FW Act had not been met: PJ [616] (Eighth Alleged Factual Error); and

(i)    dishonesty was not alleged in LOR’s amended response: PJ [549] (Ninth Alleged Factual Error).

C.2    Challenge to conclusion of serious misconduct

59    LOR claims that the primary judge erred in deciding that Mr Haley had not engaged in serious misconduct sufficient to justify summary dismissal, and that therefore LOR had repudiated Mr Haley’s contract of employment, by, among other things:

(a)    misapplying principle and acting contrary to authority;

(b)    not addressing the actual conduct of Mr Haley;

(c)    disregarding the reasons relied on by LOR for the decision to summarily dismiss Mr Haley;

(d)    failing to recognise the senior position of Mr Haley and the responsibilities and obligations attached to that; and

(e)    failing to take into account relevant evidence and taking into account irrelevant considerations,

(the Summary Dismissal Ground).

C.3    Challenges to findings of law

60    LOR claims that the primary judge erred and acted contrary to authority in deciding that by “purporting” to summarily dismiss Mr Haley from his employment on 24 July 2020, LOR took adverse action against Mr Haley in contravention of s 340(1) of the FW Act because it had failed to call as a witness the person who the primary judge determined was the decision-maker (the Adverse Action Ground). This ground concerns the same subject matter as Alleged Factual Error Seven and Alleged Factual Error Eight (set out above).

61    LOR also claims that the primary judge erred in finding that it had contravened s 117(1) of the FW Act in the way notice of termination of employment had been given to Mr Haley, because his Honour did not consider that Mr Haley had been guilty of serious misconduct and therefore the exception in s 123(1)(b) of the FW Act could not apply (the Section 117 Ground).

C.4    Procedural fairness grounds

62    Finally, LOR claims that it was denied procedural fairness in the proceedings below on the following grounds:

(a)    by reason of the delay between the giving of evidence in the proceeding (19, 20, 21 and 23 September 2022), the making of closing submissions (28 November 2022) and delivery of the primary judgment (28 March 2024) (the Delay Ground);

(b)    by reason of the primary judge’s decision to reject Mr Chatwin’s evidence that he was the sole decision-maker in relation to the decision to terminate Mr Haley’s employment, and to find that LOR’s managing director, Mr Cathal O’Rourke (Mr O’Rourke), likely made the decision to terminate Mr Haley’s employment, in circumstances where it was never put to Mr Chatwin in cross-examination that Mr O’Rourke was the sole decision-maker in relation to the decision to terminate Mr Haley’s employment (the Browne v Dunn Ground); and

(c)    that the primary judge acted in the absence of evidence by finding that:

(i)    the owners of the Pambula Property were not entitled to enter the premises during the Incident; and

(ii)    the owners’ unlawful entry onto the premises incited the Incident,

in circumstances where:

(iii)    the only evidence which supported the findings referred to in (i) and (ii) above was that some of LOR’s employees had apparently shouted at the owners that they were not entitled to be on the premises;

(iv)    the contract pursuant to which LOR’s employees were occupying the Pambula Property was not in evidence; and

(v)    the contract was unlikely to be a conventional landlord and tenant agreement, as:

(A)    it was entered into on the “stayz.com.au” website;

(B)    only part of the Pambula Property was to be occupied by LOR’s employees, with the remaining part of the residence to be occupied by the owners’ elderly mother; and

(C)    it was inherently unlikely that the owners would not have been entitled to enter the Pambula Property to visit their mother,

(the Absence of Evidence Ground).

D.    PRINCIPLES OF APPELLATE REVIEW

63    The principles of appellate review relevant to the disposition of this appeal are well established. This Court’s appellate jurisdiction involves an appeal by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20] (Allsop J, Drummond and Mansfield JJ agreeing). The task of the Court on appeal is to correct error: Branir at [22]. Where, as here, there are challenges to findings of fact, the appeal is governed by a correctness standard as set out in well-established authorities such as Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. In such cases, the appellate Court is generally in as good a position to determine those facts: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [41] (Gageler J); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ); Warren v Coombes at 552 (Gibbs ACJ, Jacobs and Murphy JJ). However, in order for such an appeal to be successful, it is well-established that a finding of error is indispensable, and that a mere disagreement on a finding of fact is ordinarily insufficient: Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 at [45] (Perram J, with whom Allsop CJ and Markovic J agreed).

64    In respect of such an appeal, this Court must do a “real review” of the evidence that was before the primary judge: Fox v Percy at [25]; SZVFW at [32]. The appeal court must make up its own mind about the facts. However, it does not deal with the case as if trying it at first instance and has regard for the advantages enjoyed by the trial judge: Branir [28]; Aldi Foods at [47]. The proper approach is not to ask the court to survey all the evidence and to arrive at its own conclusions, or to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. The views and conclusions of the trial judge ultimately have to be shown to be wrong, and they should not be ignored and the case re-argued: Branir at [30].

65    In assessing the evidence and the findings of fact, the appellate Court does so noting that the primary judge had all the advantages of making an assessment of the witnesses’ evidence at trial, noting that findings of fact based on the credibility of witnesses can only be reversed by an appellate court “in exceptional cases”: Fox v Percy at [94] (McHugh J). The “advantages of the trial judge” are not simply observation of cross-examination. They include “the advantages, subtle but real, of a trial judge hearing a long case and being able to assess and place all the evidence in its context as it unfolds and as witnesses (truthful, reliable, or not) deal with it”: Frigger v Trenfield (No 3) [2023] FCAFC 49 at [142] (Allsop CJ, Anderson and Feutrill JJ); State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at [89]-[91] (Kirby J). They include that the trial judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments; the trial judge hears and sees all of the evidence in a reasonably logical context; the evidence unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form; and during the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence whilst the latter is still fresh in mind: Frigger at [142]; Earthline at [90].

66    Where findings are “based on a combination of impressions about the credibility or reliability of witnesses and other inferences from primary facts”, they are liable to be reversed only if “shown to be contrary to ‘incontrovertible facts or uncontested testimony’ or be shown to be ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Frigger at [141] and cases there cited including Fox v Percy at [28]-[29] and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

67    Having regard to the above principles, I next turn to set out the review of the evidence that I have conducted, and, in doing so, I set out those facts that were not challenged.

E.    THE EVIDENCE BEFORE THE PRIMARY JUDGE AND UNCHALLENGED FINDINGS

68    In this section, I have set out the relevant evidence and unchallenged findings about that evidence in essentially chronological order. I have also taken this course so that these reasons may be read as a self-contained whole, without unnecessary reference back to the primary judgment (other than where I have so stated).

E.1    Employment Contract and Position Description

69    Mr Haley was employed pursuant to a contract with LOR signed on 25 July 2018 (Employment Contract) in the position of “Commercial Leader” and was appointed the leader of the Commercial Team for the Bushfire Project. Mr Haley was based in Sydney and worked out of LOR’s head office in North Sydney, but was also expected to visit the areas where work was being carried out in connection with the Bushfire Project: PJ [48]-[49], [78]-[79].

70    The Employment Contract contained terms that included the following (PJ [49]):

(a)    Mr Haley would report to “the Commercial Director, Simon Chatwin”;

(b)    Mr Haley would be required to work an average of 38 hours per week at times advised to him, and any reasonable overtime to meet the requirements of his role;

(c)    Mr Haley was required to familiarise himself with LOR’s “Global Code of Conduct, as well as detailed policies, procedures, and other business rules… which are available through the intranet”, although these policies did not form part of the Employment Contract.

71    Relevantly, in respect of summary termination, the Employment Contract contained the following clause (Termination Clause) (PJ [50]):

Summary Termination

If you are guilty of misconduct or commit a serious or persistent breach of a term or condition of this document, the Company may terminate your employment immediately without notice. Without limiting the generality [of] this clause, your employment may be terminated immediately without notice if you:

(a)     engage in wilful, or deliberate behaviour that is inconsistent with the continuation of your employment;

(b)    engage in conduct that causes imminent and serious risk to a person’s health and safety, or the reputation, viability, or profitability of the Company;

…

If you are terminated for misconduct, no payment will be made to you other than accrued entitlements up until the date of termination.

(Emphasis added).

72    There was a document in evidence before the primary judge entitled “Position Description” for the position of “Commercial Leader” (Position Description). The Position Description stated that the person occupying that position reported to a “General Manager/Project Leader” and had a “[f]unctional supervisory responsibility for commercial staff, and other designated functional reports within a Region of the Hub”: PJ [51]. Ultimately, the primary judge found that the Position Description was not relevant as LOR did not rely on it as part of the Employment Contract and did not rely on the standards set out in the Position Description in terminating Mr Haley’s employment: PJ [58]. There is no challenge to these findings. Despite there being no challenge to the findings made by the primary judge in relation to the Position Description, there was no contest between the parties in the proceedings below or on appeal, that in his position as Commercial Leader, Mr Haley had a leadership role in respect of his subordinates.

E.2    Code of Conduct and Travel Policy

73    One of the policies which was in evidence before the primary judge was a document titled “Doing the Right Thing Our Global Code of Conduct” (Code of Conduct).

74    LOR relied upon the part of the Code of Conduct that provided as follows:

Relationships with other stakeholders

We understand that our relationships with all stakeholders are important to delivering a successful outcome for our customers.

What it means:

Other stakeholders may include local residents and businesses, adjacent construction projects, community groups, approving organisations, funding bodies, trade unions and the media. During all of our interactions with others, including through social media, we must remember that we are representing our business, our customers, and our projects and we have a duty to maintain our professionalism at all times.

We always:

•    treat members of the public and all other stakeholders with respect

•    listen to concerns raised and proactively seek a satisfactory resolution to any issues.

…

We never:

•    forget that our reputation depends on how we interact with all stakeholders

•    forget that when carrying out our work, we are guests in a local community

…

75    LOR also relied upon a document titled “Travel Policy, Australian Hub” (Travel Policy) to the extent that it stated that:

Employees are required to act in accordance with directions from Laing O’Rourke and to observe the Code of Conduct whilst traveling between their home office location and project/alternative work location.

E.3    The Incident

76    As noted above, the Incident occurred late on the evening of 2 July 2020 and into the early hours of the following morning. The facts of the Incident emerge from the various accounts of witnesses which were before the primary judge and which are set out below. The primary judge concluded that the facts of the Incident were as set out at PJ [215]-[216]. Other than the specific allegations of factual error raised in the Amended Notice of Appeal, LOR does not challenge the facts of the Incident as found by the primary judge.

E.4    Complaints received from the Pointons

77    On 3 July 2020, a person identified as “Amy” who apparently held the position of “Corporate Consultant, CTM Laing O’Rourke Team”, sent an email to a person identified as “Tarsh”. “Tarsh” was identified as being Ms Tarsh Woodford who occupied the position of “Hub Travel Coordinator, Central Travel Desk - Australia Hub”: PJ [112]. In the email, Amy stated as follows:

Disappointing news to start the day I’m afraid. I received the below message from [Ms Pointon], property owner of the 5 Bedroom Home that we have Boyle, Byrne & Neely guys staying. [Ms Pointon] has called me to discuss her version of events and reserves the right to cancel the booking.

Hi Amy,

It’s 1:45 am and we have had to have the police to the house after noise complaints from neighbours.

There is a strict no party policy, clearly stated in the Terms and Conditions and the tenants are in breach of this.

I will call you during work hours to discuss.

Regards,

[Ms Pointon]

Last night at least 10 people were at the property including the 5 booked guests. Visitors included Tom (surname unknown but [Ms Pointon] believes is Andy’s boss), David (believed to be boss of the 5 guys, a bit older than the others) and a couple of girls in a QLD plated vehicle thought to be working on the project.

The first noise compliant [sic] was raised just after midnight by 85 year old neighbour which is the owner’s mother. The guys are aware she lives next door. The owner [Mr Pointon] visited property and asked that the party be shut down due to noise complaint and reminded them that no parties are permitted at the premises.

At 12.45 am, [Mr Pointon] phoned and spoke to Andy, asked again that noise stop and visitors that were not house guests to leave premises.

At 1.00am [Mr and Ms Pointon] arrived at premises and party was still going. Due to the noise the occupants could not hear knocking at main entrance door, it was open, so [Mr and Ms Pointon] entered the property and spoke with Andy again asking the party to be shut down. [Ms Pointon] has stressed that Andy was respectful and is very apologetic however did not appear to have any authority over the other guests.

At this time, Shaun, Shane and Tom became aggressive. They physically threatened both [Mr and Ms Pointon], saying they had paid for the property and could do as they wish and to go away (cursing). Tom needed to be restrained by visitors to the property. At this point the Police were called, [Mr and Ms Pointon] left the premises along with the girls that were visitors.

Photos were taken by the owners of the amount of alcohol consumed and are concerned about the state of their property as the house was only cleaned yesterday. Laing O’Rourke are paying for weekly servicing of this property.

The booking is valued at $775 per night (before weekly servicing fee). The guests have been at the property 11 nights. The owners are willing to continue the booking subject to Shaun Boyle & Shane Neely being removed from the property this weekend not return for the duration of the booking to 30 August and Tom (surname unknown) not to access property again due to the physical threats.

Andy Byrne has apologised in writing to the owners and acknowledged wrongdoing.

The remaining 58 nights is valued at $44,950 before weekly servicing so it is in best interests to work with the owners.

Can you please advise how I may return to [Ms Pointon]. She has offered her number should Laing O’Rourke wish to speak with her about the incident…

These owners as you may recall have been very accommodating, 10% discount on long stay rate, allowed the guys to store work equipment prior to their arrival and an extra night free of charge .

(Emphasis added).

78    In the proceedings below, the primary judge referred to the above as the “First Mr/Ms P Account” (PJ [113]) and I will refer to it as the First Version of the Pointon Complaint.

79    Later that day (3 July 2020), Ms Woodford sent an email to Mr Paul Barrie (Project Director for the Bushfire Project) and Mr Jeff McAuliffe (Project Leader for the Bushfire Project), copied to Mr Murray Curnow-Rose (Human Capital and Industrial Relations Lead) and Ms Michelle Salisbury (Senior Human Capital Advisor). In that email, Ms Woodford pasted an extract from the email “Amy” had sent to her that morning, including the First Version of the Pointon Complaint, but replaced the words “go away (cursing)” with the words “Fu*k off” (as set out at PJ [114]). Ms Woodford’s email stated she had spoken to the Pointons and referred to a “video recording (link sent in separate email) of the owners [sic] conversation with Andy Byrne whilst they were waiting for the police, screen shots of Andy’s conversation and also photos of the property – noting the house rules state no parties”. Ms Woodford then added the following account:

[Ms Pointon] (the owner) passed on again (in my second conversation with her) her concern of how aggressive Tom Haley was and believes it might have been Adam who had to restrain him (as he wanted to f*ck up the old man and his Mrs) but between the 3 employees (Shane/Shaun and Tom) they were “egging” each other on.

(Emphasis added).

80    In the proceedings below, the primary judge referred to this as the “Second Mr/Ms P Account” (PJ [114]) and I will refer to it as the Second Version of the Pointon Complaint.

81    Later on 3 July 2020, Mr Curnow-Rose sent an email to Mr Barrie, copied to Ms Helen Fraser (General Manager, Human Capital), Mr Chatwin and Mr Dane Bates (Head of Industrial Relations and Human Capital Operations), in which he stated (PJ [222]):

Based on the brief outline of the incident and the serious behaviours exhibited by our staff, firstly we need to stand down the core group, undertake an investigation, then pending the investigation outcome seek disciplinary action if deemed proportional.

The aggressive and inconsiderate behaviours show little regard for the communities in which we operate and bring the negative publicity to LORAC.

Statements will need to be collected and the full circumstances understood.

(Emphasis added).

E.5    Mr Haley is suspended and an investigation is commenced

82    Sometime after 5:11 pm on 3 July 2020, Mr Curnow-Rose sent an email to Mr Haley attaching a letter dated 3 July 2020 that stated as follows (PJ [225]):

Laing O’Rourke Australia (Laing O’Rourke) has recently received allegations against you of aggressive and inconsiderate behaviours that show little regard for the communities in which we operate and bring negative publicity to Laing O’Rourke (Allegations).

Laing O’Rourke takes these matters seriously and intends to investigate the Allegations.

Investigation

You will be contacted next week in relation to the investigation.

As part of the investigation process, you will be provided with details of the Allegations and an opportunity to respond.

I want to stress that at this stage Laing O’Rourke has not formed any view in relation to the Allegations. This includes whether any disciplinary action may be warranted. If Laing O’Rourke considers that such action is warranted following the investigation, you will be advised of this and again be given an opportunity to respond.

Suspension

In the meantime, we have decided that you should not attend for work while the investigation is being carried out.

Accordingly, your employment is suspended (with full pay) effective immediately until further notice. While suspended, you are not required (or permitted) to attend for work, however, you will still receive your normal pay.

(Emphasis and additional emphasis added).

83    Early on 4 July 2020, Mr Curnow-Rose sent an email to the Pointons, apologising “for [the] action of our staff Thursday evening”, and stated that LOR would be fully investigating the Incident. Later that day, Mr Curnow-Rose sent a further email to the Pointons attaching a letter dated 4 July 2020 confirming that LOR “is undertaking an investigation into matters raised by [you] as set out in your email and telephone call with Natasha Woodford on Friday 3rd July 2020”. The email stated that (PJ [227]):

The investigator is not the decision-maker- they will provide their findings to the Head of Employee and Industrial relations who will then determine the outcome of the investigation in consultation with the relevant decision makers.

84    The email then outlined the investigation process as follows (PJ [228]):

I will advise the Respondent that a complaint has been made by you and of the general nature of the Complaint.

The investigator will then:

•    meet with you to clarify any questions they may have about your Complaint;

•    provide the Respondent with details of your Complaint and seek a response;

•    meet with any identified witnesses who are relevant to the matter; and

•    provide you with an opportunity to respond to any relevant new information raised, before the investigation concludes.

(Emphasis added).

85    Also on 4 July 2020, Mr Curnow-Rose sent a letter to Mr Haley informing him about, among other things, the “investigation process”. Mr Curnow-Rose stated (PJ [229]):

I will:

•    meet with the Complainant to clarify any questions they may have about the Complaint;

•    provide you with details of the Complaint and seek your response; and

•    meet with identified witnesses who are relevant to the matter.

If new information arises during the course of the investigation, it may be necessary for me to conduct follow up interviews with witnesses, and to seek further responses from you and the Complainant.

. . . .

I plan to complete their [sic] interviews with the Complainant and other witnesses as soon as possible.

I will then arrange a meeting with you and your support person (if any) to obtain your response. I may also provide you with details of the allegations about your conduct in writing. If you believe there are witnesses who may be relevant to the investigation, please let the [sic] me know when I meet with you. You must not speak to any potential witnesses about this matter.

86    On 4 July 2020, Mr Haley telephoned Mr Curnow-Rose. Mr Haley recorded this conversation with Mr Curnow-Rose’s permission. In that call, after stating that he was “very concerned about the implications” of the letter Mr Curnow-Rose had sent to him, Mr Haley said he wanted Mr Curnow-Rose to confirm “whether the allegations made… amount to a misconduct offence or a serious conduct offence”. Mr Curnow-Rose said that he was “unable to answer that question at this moment, until I fully understand the situation that took place”. In a finding that was not challenged, the primary judge found that this was not a responsive answer to Mr Haley’s question, stating (PJ [231]):

Mr Curnow-Rose had recommended that Mr Haley’s employment be suspended, and LOA had accepted that recommendation by suspending Mr Haley from his employment; and presumably he had done so because he had formed the view that, prima facie, Mr Haley had engaged in misconduct.

87    Mr Haley then told Mr Curnow-Rose that he was “flabbergasted” that he had been accused, and said he wondered what was going on. Mr Curnow-Rose responded as follows (PJ [233]):

[T]here has been accusations made, there’s alleged behaviours that I have broadly relating to both the letters. I understand that I need to know what the situation was to understand that and expand on that, but at the moment there is no accusations of anything.

(Emphasis added).

88    The primary judge found that this part of what Mr Curnow-Rose said was difficult to understand given that Mr Curnow-Rose had already recommended that Mr Haley be stood down on the basis of allegations of “serious behaviours exhibited by our staff” and “aggressive and inconsiderate behaviours” and had apologised to Mr and Ms Pointon for the “action of our staff”. In those circumstances, the primary judge stated that “it is difficult to see how Mr Curnow-Rose could reasonably have said that he ‘need[ed] to know’ what the situation was”: PJ [234]. There is no challenge to these findings.

89    There was then a discussion as to the policies it was alleged Mr Haley had breached. The conversation was as follows (PJ [235]):

TH — just the policies that I have allegedly breached, that’s what I am looking for.. I am looking to understand what I am being held to account against, erm, I am looking to get the context to the allegations and what I have done wrong. I think, I think what I am trying to understand is what I’ve done wrong and why I have been formally suspended because I don’t understand it, so I am scratching around now trying to work out why I am involved in the process, so that’s why I need to gather information and understand it.

MR — as the first, sorry tom, to interrupt you there. As the first paragraph says of the letter, Laing O’Rourke Australia is undertaking an investigation to the matters of your conduct. The Complainant has alleged aggressive and inconsiderate behaviours that show little regard to the communities in which we operate and bringing negative publicity to Laing O’Rourke. That’s the broad context of that, there are no other details, because the investigation has not started. As part of an investigation the first stage is, to stand people down or suspend them, with full pay, so we can get this all cleared up and give us time.

(Emphasis added).

90    The primary judge found that Mr Curnow-Rose’s statement that “there are no other details, because the investigation has not started” was incorrect because, by that time, he was aware that the Pointons had alleged more specific matters as set out in the emails from “Amy” and Ms Woodford on 3 July 2020: PJ [236]. There is no challenge to this finding.

E.6    First set of interviews conducted on 6 July 2020

91    On 6 July 2020, Mr Curnow-Rose interviewed Mr David Field (Procurement Manager and visitor to the Pambula Property on the night of the Incident), Mr Shaun Boyle (one of the Pambula Property Residents), Mr David Grierson (Senior Superintendent and visitor to the Pambula Property) and Ms Pointon. I summarise and extract relevant portions of those interviews below.

E.6.1    Mr Field’s account

92    Mr Field said he left the Pambula Property before midnight. As he walked out, he saw a gentleman who looked agitated and who asked him to turn the noise off and said that this was the first and final warning and that his mother was on the premises. Mr Field went back inside and spoke to Mr Andy Byrne, saying that there was a man outside who he believed was the owner of the property and who asked that the noise be turned down and the music off. Mr Field left the premises and recalled that the music was turned off when he left: PJ [115].

E.6.2    Mr Shaun Boyle’s account

93    Mr Shaun Boyle said that there was a BBQ at the Pambula Property with food and drinks, and later on there was participation in singing karaoke using YouTube. Mr Shaun Boyle stated that such an event had been held previously with the company team and was a good team bonding exercise. At one point, he was seated on the sofa and Mr Haley and Mr Adam Neely were standing up and singing. Mr Shaun Boyle looked up and saw “Tom being pushed to the side” by a man he did not recognise. He recognised Ms Pointon who he had met once before. The balance of the account as relevant was set out in the primary judgment as follows at PJ [117]-[120]:

… They stormed through and pulled the remote off Adam. Started shouting for everyone to get out. In shock. We started saying we were renting the house and they were not allowed to enter house. There was a couple more exchanges. We moved outside towards the door. They said they would call the co[p]s, we said call them we are not doing anything wrong and we aren’t making much noise. Adam said to the owners you said we can make as much noise.

After an interruption, the interviewer asked: “So Tom and Adam were signing [sic]?”, in response to which Mr Shaun Boyle said (emphasis added, and errors in original):

Tom and Adam were singing. I was sitting on the sofa, looked up and the owners come through door. I seen Tom get pushed to the side, both went towards Adam and grabbed remote, they turned off tv. We all stood up and started arguing. Said couldn’t come into house the way we they did. Moved to door, argument continued. Adam said to [Ms P] she told us we could make as much nose as we wanted to. The day we viewed house with Andrew and Adam, [Ms P] told us about resident downstairs. We locked the balcony before the BBQ so no one could go out there. Found strange as it was not too loud. Husband shouted at Adam don’t speak to my wife and grabbed him aggressively. Then Andy and Dave told everyone to go inside and they talked to them outside. That was my last interaction with couple. The cops came, no damage to house, just drinks. The cops left happy enough.

In response to the question whether Mr Shaun Boyle could give a “timeline for events that night”, Mr Shaun Boyle said:

BBQ at 6pm / food, eating and chatting. The music around 9 or 10pm not 100% sure went on for 1–2 hours. Maybe rafter [sic] 12 the couple entered the house. Not 100% sure.

Later in the interview Mr Shaun Boyle gave the following answers to questions Mr Curnow-Rose asked (emphasis added, and errors in original):

MCR — Do you believe the actions appropriate that night of the group?

SB — Reacted the way. Not the way we accused of. Not aggressive, intimated. They barged through aggressively.

MCR — Who barged through?

SB— Tom pushed out of the way, ran towards Adam.

MCR — So they pushed past Tom towards Adam?

SB— Yes

MCR — What was he doing?

SB — Singing

MCR — Where were they?

SB — We were sitting down, they were in front of us, they barged through Tom to get remote off Adam.

MCR— Who barged through?

SB— Both of them

(Emphasis added).

E.6.3    Mr Grierson’s account

94    Mr Grierson gave the following overview as set out at PJ [121]:

Majority of people rocked up at 7pm. Commercial team did BBQ, food, alcohol. We stood in kitchen area, eating, having a few drinks. Around 10:30–11ish we went into the lounge area, had karaoke. Initially around 20 people in kitchen and karaoke was 10–12 people max. I would say 11:30am [sic] owners rocked up come in to the lounge and basically told everyone to get out. Everyone went into the kitchen, all talking collectively around the bench in the kitchen and then basically the owners said she had called the police, told everyone to get out. I said everyone move way as they were all stood there. I tried to get everyone out of the way, myself and Andy tried to diffuse the situation with the owners. We went outside, had a conversation with her and husband, asked not to ring police, she said she already did it. Police came into house, we explained what happened and they left

95    In response to questions from Mr Curnow-Rose, Mr Grierson gave the responses set out at PJ [122]-[124]:

In response to the question, “[w]hat was [the] emotion in the room?”, Mr Grierson said (emphasis added):

There was shock from the commercial boys that live there as the owners said get out. In the kitchen during the conversation, there was to-ing and fro-ing. Someone said why you want us out, the owner went fucking get out. I can’t remember who said it, but they said we rented this place, the owners said we know, we want you out. When conversation happened, Andy and I tried to diffuse it, tried to appease the owners as they were agitated as they just walked into the house.

At that point, Mr Curnow-Rose is recorded as asking: “[w]hat was the reaction of Tom Haley?”, in response to which Mr Grierson said (emphasis added):

Tom was sort of further back than most people. It was a heated discussions [sic], I can’t recall what was said. I was in there talking, it was so quick to be honest. They wanted everyone out of the house. I introduced myself to try and sort things out. The owner [Mr P] was agitated, I think Tom felt that he didn’t want to see the young lads being intimidated . . . . During the conversation, Tom said you “can’t do this”.

Mr Grierson also gave the following information (emphasis added):

MCR— Coming back to Tom, you saying word like intimidation was there any heightened emotions displayed during incident while the owners were there?

DG — Depends how you interpret it — you could say aggression. I didn’t want owners to feel intimidated. There was no one walking towards them threatening them. They said get out, Tom said you can’t do that, owner said I can do what I fucking want. Heated conversation swear words used. The women [sic] turned around and said I called the police.

. . .

MCR — Police turned up, what time?

DG — 15/20 minutes after owners left, they came into the house as well.

MCR — What did they say?

DG — Myself and Andy spoke with them, explained 2 people singing karaoke, owners turned up, told us we were being too loud, he said it’s not a problem. The police didn’t seems [sic] too phased about it.

MCR — Why were the owners so aggravated?

DG — In light if [sic] what I know now, I can understand. Apparently an older lady lives underneath the house, only found that out after the incident.

MCR — Do you feel the behaviour was overtly emotional?

DG— They bowled in, snatched the remote control off someone. We all walked into the kitchen, they said we want you fucking out of here. The guys live there, not doing anything wrong, don’t want to piss you off etc, that’s why Andy and myself said a couple of us speak with the owners and diffuse the situation.

DG — They were upset because their mother lives underneath. There wasn’t obsessive [sic] noise, only 1–2 people signing [sic] at the one time.

MCR— Did at any point a Laing O’Rourke employee restrain another Laing O’Rourke employee?

DG — Um, restrain, I might have barged people to get out of way, barged is the wrong word, I put my arms out to advise them to move out of way to have a decent conversation.

MCR — Where [sic] there any comments that were made that were overtly aggressive to the owners that stick in your mind?

DG — Don’t recall, no.

MCR — Did at any point a Laing O’Rourke employee make physical treats [sic] towards the owners of house?

DG — Don’t recall words or physically threats, conversation between Laing O’Rourke people and the owners, I can’t remember what was said.

MCR — Understand that private location, BBQ and alcohol provided, was anyone overtly intoxicated?

DG — No one blind drunk, people have a few bottles of beers and eating food. No one out of order/out of control.

MCR — Are you comfortable in times you have recollected?

DG — Approximates, wouldn’t put my house on it.

MCR — Can we go back for a moment, one of the owner’s grabbed remote control? Can you please explain?

DG— Took it out of someone’s hands, as they were using it as microphone.

MCR — Male of female home owner?

DG — Can’t recall, sorry

(Emphasis added).

E.6.4    Interview with Ms Pointon

96    The interview conducted by Mr Curnow-Rose of Ms Pointon was referred to by the primary judge as the Third Mr/Ms P Account and I will refer to it as the Third Version of the Pointon Complaint. The primary judge set out this account as follows at PJ [125]:

At 12:10 am my husband received call from his mother . . . who lived downstairs. She said there was a, loud party upstairs and it had been going since 8:00pm and she had enough. We live 10–15mins away, so [Mr P] drove there and saw what he thought was a senior Laing O’Rourke person. Thought he was senior because of age. [Mr P] explained the no party policy, asked for him to shut it down. [Mr P] had taken photo of the event. He saw the man walk back into the house and saw all people turn around and look at him. That man left. [Mr P] continued watching from the Hill. There was no change and the party was continuing, so [Mr P] spoke with Andy. Advised him of the no party policy, and that it needed to cease immediately, said it was the first and final warning. Andy apologised and [Mr P] left. Andy was the person who booked with us and he seems decent and respectful, so thought he would handle the situation so [Mr P] left.

When [Mr P] got home around 12:46am, I had gotten up looking for him and he told me what happened. I called Andy’s mobile. He answered and the party noise was still evident. I told him to stop it, he apologised and told us he would sort it out.

At around 12:53am, he sent text, 1:05am we stood out the front of the house, near [Mr P’s mother’s] bedroom. We went to the back of house, they appeared to be gathering the lounge room. In the lounge room there is a surround sound system with base [sic], they had the music very loud and we tried knocking on the door, they didn’t hear us. We entered the hose [sic] and went into lounge room, no one saw us initially. Andy was on the lounge and he saw us. Shane had remote, I took it off him, he turned around and struck me, he then apologised when he realised it was me. Everyone was swearing and we asked for the party to be shut down. Shaun got up into my Husband’s face, told him to fuck off, we have paid for this house, get out and take your wife. Tom was there and there was 5 of them around [Mr P] and he was feeling threatened. I said I’ll have to call the police and someone responded call the f-ing police. I left [Mr P] in there. There is limited phone reception in the house so I had to go onto the backyard. Because it’s a regional town I don’t have much faith in the Police as they usually send from Batemans Bay and it can take a few hours. But it was manned this night. Walking through the house, the amount of alcohol empties, cake on floor, obvious that it was quiet a party. They followed us out the back of the house. Shaun appeared to be main ringleader saying, we f-ing we paid for this, get out. Tom started chanting, go home old man, old lady and had to [sic] restrained, said he was going to f-up the old man and lady. I don’t know who was restraining him. Maybe Adam or someone. Shane was with him, he was aggressive. I had to ask Tom and Shane for their names. They didn’t want to give me their names, but they eventually did.

We were standing outside with Andy and Dave Grierson. David was very intoxicated, trying to reintroduce himself, he said he only arrived and that he didn’t know what [sic] going on. He message yesterday. I’ll send that message through. Andy kept apologising.

A driver arrived to take girls away, one of the girls tried to stop Shane and Tom and apologised.

Andy kept apologising, appeared distressed. At no time was he disrespectful. Apparent he didn’t have authority of anyone at the party. Police arrived and they could only do a noise abatement. Said we were crazy to go into the house. [Mr P’s mother] had a pacemaker fitted a couple of weeks ago and we have a no noise policy. No noise on deck, Andy knew this. Before that evening everyone was very respectful leaving at 5:00am, [Mr P’s mother ] hadn’t heard them.

He sent us text the next morning, asking if he could do any jobs to make a mends [sic]. He took [Mr P’s mother] some chocolates. I didn’t response [sic] until later that evening and it went to voicemail. Text me asking me if we could meet on Sunday, agreed to meet at 11 am. That’s when we meet. Said I wanted to inspect the house.

…

That’s the best of my recollection, it was very frightening at the time. It was a pack mentality at the time going on in there.

MCR - Thank you it’s very helpful.

97    Ms Pointon also said that she had “another recording, it’s a voice recording”, which Mr Curnow-Rose asked her to send through. Ms Pointon then added the following (as recorded at PJ [126]):

Andy told us that everyone involved have never acted like this before. I do feel their remorse is only because they are in trouble. Anyone in senior position that was there and didn’t shut it down, it’s no acceptable. I come from a corporate background. If in your investigation you find out they didn’t do the right thing, I ask that you remove them. If they weren’t part of it ok then I’m ok for them to come back.

E.7    The primary judge’s assessment of the evidence gathered to this point by LOR

98    The primary judge found that, by the time Mr Curnow-Rose completed his interview of Ms Pointon, it would or ought to have been apparent to him that Ms Pointon had somewhat expanded the First Version of the Pointon Complaint, to the extent it related to Mr Haley. On the Third Version of the Pointon Complaint: (a) Mr Haley was among five people around Mr Pointon that made Mr Pointon feel threatened; (b) Mr Haley started chanting “go home old man, old lady”; (c) Mr Haley had to be restrained; (d) Mr Haley said he was “going to f-up the old man and lady”; (e) Mr Haley was asked his name, but after not wanting to give his name, eventually informed Ms Pointon of his name; and (e) one of the girls tried to stop Mr Haley: PJ [238]. This finding is not challenged.

99    The primary judge also concluded that, by the time Mr Curnow-Rose completed his interview of Mr Grierson, it would or ought to have been apparent to Mr Curnow-Rose that there were significant discrepancies between the Pointons’ Accounts, and those given by others. On Mr Shaun Boyle’s and Mr Grierson’s accounts, which were substantially to the same effect, Mr and Ms Pointon barged into the Pambula Property, Mr Pointon pushed Mr Haley aside (on Mr Shaun Boyle’s account), Mr and Ms Pointon shouted for everyone to “fucking get out”, and Mr or Ms Pointon grabbed the remote control from an employee: PJ [238]. This finding is not challenged.

E.8    The Audio Recording is sent to LOR

100    At 1:55 pm on 6 July 2020, Ms Pointon sent to Mr Curnow-Rose an email that attached the Audio Recording. The email stated (as extracted at PJ [127], [133] and [239]):

The attached voice recording was made after I rang the police and we were waiting outside on the back deck for them to arrive. It took 15–20 minutes for the police to arrive. From where we stood we had a clear view of the kitchen where they had all moved to, as it opened out to the back deck. I remember Shaun [Boyle] kept coming outside to where we stood, I think I started recording after he continued entering my husband’s personal space (within cms of his face) and had to be restrained but it is a bit of a blur now. We regret engaging at all while we waited for the police. After this recording I changed to video and the video (previously sent) was recorded.

(Emphasis added).

101    The primary judge referred to the above email as giving rise to the Fourth Mr/Ms P Account.

102    The Audio Recording is 5 minutes and 6 seconds long. It was played in the hearing before me. I listened to it intently without the aid of any transcript. Despite my concentrated effort, I could not hear the Offensive Words being uttered on the first three occasions. On a fourth occasion, after the Audio Recording was played back from the relevant portion (i.e., 1 minute and 16 seconds onward), I could make out the Offensive Words being said.

103    The primary judge set out a transcript of the Audio Recording by way of an aide memoire. The primary judge stated that (at [135]):

… The transcript is inaccurate to the extent it suggests the words it records were said sequentially. In truth, parts of the audio recording record words being spoken at the same time by different people. That means that it should not be assumed that Mr [Pointon] or Ms [Pointon] heard everything that is recorded on the audio recording. Moreover, a number of the words the audio recording records were exchanged between persons that did not include Mr [Pointon] or Ms [Pointon].

104    In relation to the first portion of the transcript (from the beginning through to 1 minute and 30 seconds), the primary judge recorded that the aide memoire disclosed the following (PJ [136]):

The audio recording is approximately 5:06 minutes long. It begins with “AB” (Mr Andrew Byrne) telling “AN”, namely, Mr Adam Neely, to “[g]et in there now”. Mr Adam Neely states “She’s telling lies and he’s telling lies”; and DG (Mr Grierson) states: “I’ll come and grab you in a minute mate. Trust me I understand your point of view”. The recording continues as follows:

105    It is at or about this point of the Audio Recording that the primary judge found that the Offensive Words were uttered, and that they were uttered by Mr Haley: PJ [137]. In relation to this part, the primary judge stated as follows (PJ [137]-[139]):

To this point, the foreground noise, as recorded on the audio recording, is dominated by “SB”, (which I find to be a reference to Mr Shaun Boyle) and “SN” (which I find to be a reference to Mr Shane Neely) arguing with Mr and Ms P, and Mr Grierson attempting to dissuade them from doing so. In the background, and while Mr Shane Neely says “Can't have a bit of a laugh like. Can we not have a crack”, one hears, if one directs the concentration away from what Mr Shane Neely is saying, the words: “go home you fucking silly old cunt”. I find that the voice uttering these words is that of Mr Haley. I also find, however, that it is only if the listener consciously directs attention away from the words that constitute the foreground noise that the listener can begin to detect that words are being spoken in the background at the same time as the words that constitute the foreground noise are being spoken; and that it is only with additional effort that the listener can detect that the background words are “go home you fucking silly old cunt”, and conclude that it is Mr Haley that is uttering them.

The audio recording then records that, in the course of Mr Shaun Boyle saying: “Fuck, Like it’s fucking, I guess; you know what I mean, like it’s fucking, it’s”, and Mr Grierson saying “Shaun do me a favour and just go”, one hears more clearly the words “Go home old man, old lady, go home, go home, go home, go home”. I am satisfied that the voice uttering these words is also that of Mr Haley.

The audio recording continues as follows (emphasis added):

106    There is no challenge to the finding made by the primary judge that it is only if the listener consciously directs attention away from the foreground noise that one can detect that words are being spoken in the background and that it is only with additional effort that the words “go home you fucking silly old cunt” can be heard on the Audio Recording. This also accords with my own assessment of the Audio Recording, however, in my opinion, at least on the first hearing, those words are barely audible.

107    The primary judge further found that (PJ [140]):

Ms [Pointon]’s question ‘And what’s that one’s name?’ does not appear to be, and I am not satisfied that it is directed to Mr Haley; Ms [Pointon]’s question appears to be directed to Mr Grierson. That may imply that Ms [Pointon] did not understand that Mr Haley was saying anything to her or to Mr [Pointon]. Mr [Pointon] first addressed Mr Haley when she asked his name; and Mr Haley first addressed Ms [Pointon] when he responded to that question; and their conversation ended when Ms [Pointon] said “Tom, thank you Tom”.

108    The remainder of the transcript is set out in full in the primary judgment at PJ [141] and it is unnecessary to reproduce it here.

E.9    Further interviews on 6 July 2020

109    On the afternoon of 6 July 2020, Mr Curnow-Rose interviewed Mr Andrew Byrne (one of the Pambula Property Residents), Ms Amy Lovell (Assistant Quality Surveyor and visitor to the Pambula Property on the night of the Incident) and Ms Lisa McKeever (Commercial Administrator and visitor to the Pambula Property).

110    Each of Ms Lovell and Ms McKeever’s accounts are recorded at PJ [130] and [131]. Both recalled “the owner” coming up to the house and attempting to get the music turned down. Ms Lovell stated that everyone’s behaviour was “fine” before she left, while Ms McKeever stated that she did not observe any “altercation” or see any behaviour that was “aggressive or in anger” before she left.

E.9.1    Mr Byrne’s account

111    Mr Byrne had prepared a statement for the purpose of his interview. It is recorded at PJ [128] as follows:

When viewing/moving into the house [Ms P] (The owner) made me aware of the resident downstairs, I made her aware that I would be having a BBQ with work colleagues at some point over the next two weeks. [Ms P] informed me that if we were inside, out the front and not in the back balcony we could make ‘as much noise as we wanted’ (were the exact words used). Therefore, I believed there was an agreed rule that noise from a BBQ could be contained inside and out the front with no nuisance to the resident below. At no point in the evening was anyone on the back balcony.

The cause of the noise was the group participating in karaoke — which in my time with the business has a been a frequent activity to welcome new staff and create a team atmosphere. This had happened previously with many other staff members at the BBQ and also others that did not attend this BBQ. It is important to note that the [sic] was a very well natured evening, everyone was in good spirits and there was no negativity at all within the group at all — gathering was in control.

There were two points to note with the owners, the first of which at circa11.30ish was a conversation with myself and [Mr P] (owner) where I agreed to close the doors. I am not certain that everyone in the group was aware of this. Half the group were leaving via designated drivers taking them into town. There are no taxis, busses or any other form of transport that would enable the group to leave quickly.

Very shortly after that both [Ms P and Mr P] entered the property unannounced and forcibly removed TV remotes from two people participating in the Karaoke. Following this, there was a couple of exchanges between the group. These were along the lines of the owners insisting everyone left the house and members of the group responding by saying we had rented the house and they should not be here, and they had not been warned about the ants in the house was I think one comment made.

I convinced the owners to come with me to the front of the house to calm them down as they were very agitated and to diffuse the situation. There were some more words exchanged between both sides and the only act of aggression I saw was [Mr P] grabbing one member of the group I believe Adam. That is when myself and Dave Grierson decided to leave me to speak to owners as everyone else was inside with the doors closed. This lasted no more than 3–5 minutes. I want to be clear form [sic] my prospective [sic] there was no aggression from myself or any member of the group that I saw, from my perspective my focus was on calming the resident down that’s where I saw aggression. At this point the situation was over and had been diffused, no further noise was being made to my knowledge. [Ms P] informed me that they had contacted the Police before entering the property and I thought it best I wait for them to arrive and speak directly to them. Very shortly afterward they arrived and after liaising with the owners I spoke to them; they looked into the house briefly and spoke to the other members of the group before quickly ascertaining that the situation was clam [sic], there was no aggressive behaviour of any sort and no noise and were happy to leave us at the property with the residents still down stairs.

Since the event I have taken the responsibility of apologising to the owners both [Ms P] and [Mr P] and the resident below for the noise compliant [sic] and the subsequent argument as I had the positive relationship with them at the end of the night. The apologies had been accepted and I visited the resident downstairs and spoke with her in the morning with some chocolates and I believe that was the end of it of the matter and need no further involvement from anyone in the group.

(Emphasis added).

112    Mr Byrne responded to questions asked of him by Mr Curnow-Rose that are recorded at PJ [129] as follows:

MCR — At any time did a Laing O’Rourke employee have to hold back another Laing O’Rourke employee for fear of being aggressive towards the home owners?

AB — At one point Dave Grierson got everyone back.

….

MCR — Please in your words, explain the temperature/mood of the group when owners entered the home?

AB — When they came in, there was surprise, they didn’t know who the people were when they grabbed the remotes off them, next they were telling us to get out. Not much aggression, definitely aggression from [Mr P]. I didn’t see any aggression from our group from my point of view. Sole focus was on the owners.

…

MCR — What were some of the comments between the people in house towards owners in that period?

AB — Comments were we have rented and paid for this place, you shouldn’t be here. Leave us alone. Didn’t warn us about the ants. I couldn’t tell you every single comment. Didn’t hear anything else — but that’s the level of comments. Maybe about us paying and they shouldn’t be here.

MCR — So to reconfirm, you did not observe any adverse aggression towards the owners?

AB — No, not that I saw. Only aggression was from the owner [Mr P] — my focus on him.

MCR — Why are you are saying he was aggressive?

AB — The way he was speaking and near the door he grabbed Adam.

MCR — Can you explain? Where did he grab him?

AB— He grabbed his arm.

MCR — Why?

AB — May have been the comment around the ants. That’s when I said leave me with the owners.

MCR — So in the house, there were 7 males is that correct?

AB — At that point definitely just us.

MCR — And you had been drinking all afternoon since 4:30pm?

AB — Since 7pm.

MCR — Who was holding the remote?

AB — I’m not 100%, could have been Tom, can’t 100% say.

MCR — Again your saying there was no threatening statement made against owner?

AB— No, no, not that I heard.

…

MS — Have you spoken to the owners of the property since the incident?

AB — Friday morning text her to apologise, they wanted to inspect the house, so we arranged for 11am yesterday. We spoke about it. I didn’t bring up the aggression, I said I was sorry on a personal level. His mother is an older women, so the tension in [Mr P] is understandable. I spoke to them yesterday as they wanted to inspect the house. There is just myself here.

E.10    Letter to Mr Haley setting out allegations on 6 July 2020

113    On 6 July 2020, Mr Curnow-Rose sent Mr Haley a letter that stated as follows:

To assist me in the investigation, you are required to respond to the following allegations:

1.    Allegations

1.1    Aggressive and inconsiderate Behaviour Allegations

(a)    On Friday 3 July 2020, around 1 am in the morning. while at a social gathering at the [Pambula Property] you acted in an aggressive and inconsiderate manner towards [Mr and Ms P].

[Mr and Ms P] felt your behaviour was deplorable and they felt intimidated by you.

…

Next steps

At this stage. the matters raised in this letter are allegations only. No view has been formed about the truth or otherwise of the allegations.

However, you should be aware that if the alleged conduct is substantiated, this conduct:

•    could be serious misconduct;

•    may amount to abusive and threatening behaviour;

•    could damage Laing O’Rourke reputation as an organisation;

•    could be in breach of Laing O’Rourke’s Code of Conduct and the terms and conditions of your employment with Laing O’Rourke.

Depending on the findings of the investigation, you could be subject to disciplinary action, including termination of your employment.

Meeting

You are required to meet with me on Tuesday, 7 July 2020 time] [sic] to provide your response to the allegations.

(Emphasis added).

114    The primary judge made a number of findings in relation to this letter and an earlier draft of the letter: PJ [241]-[245]. Those findings were relevant to the primary judge’s evaluation as to whether the investigation that was conducted was a “genuine” one.

115    Notably, the primary judge found that certain words had been removed from the earlier draft of the letter in the section headed “1.1 Aggressive and inconsiderate Behaviour Allegations”. Those changes were recorded in the primary judgment in mark-up at PJ [243] as follows:

1.1 Aggressive and inconsiderate Behaviour Allegations

(a)    On Friday 3 July 2020, around 1 am in the morning. while at a social gathering at the [Pambula Property] you acted in an aggressive and inconsiderate manner and verbally threatened towards [Mr and Ms P] and had to be restrained by another Laing O'Rourke employee.

…

116    Based on these unexplained changes, which removed references to what the primary judge considered to be a “fair reflection of the behaviour [Mr and Ms Pointon], in the First, Second, and Third Mr/Ms P Accounts, complained Mr Haley had engaged in”, the primary judge stated that he could not be satisfied that the object of the investigation Mr Curnow-Rose purported to carry out was to determine whether complaints the Pointons in fact made were to be substantiated, partially substantiated, or not substantiated: PJ [244].

117    The primary judge then made the following findings at PJ [245]:

There are two other aspects to Mr Curnow-Rose’s description in the letter dated 6 July 2020 Mr Curnow-Rose sent to Mr Haley of the “Aggressive and inconsiderate Behaviour Allegations”.

(a)    The first is that, to the extent it may be assumed by stating in the letter he sent to Mr Haley on 4 July 2020 that he would “provide [Mr Haley] with details of the Complaint and seek [Mr Haley’s] response” once he met “with the Complainant to clarify any questions they may have about the Complaint”, Mr Curnow-Rose in fact held an actual intention to provide to Mr Haley. It is difficult to see, however, that he held that intention after Mr Curnow-Rose had deleted from the draft of the letter he sent to Mr Haley on 6 July 2020 any reference to Mr Haley having “verbally threatened” Mr and Ms P, and the reference to Mr Haley having had to be restrained “by another” LOA employee. For this reason, and given LOA has not called Mr Curnow-Rose to give evidence, I am not prepared to assume that Mr Curnow-Rose intended to convey to Mr Haley the details of the complaint Mr and Ms P actually made.

(b)    Second, Mr Curnow-Rose’s description of “Aggressive and inconsiderate Behaviour Allegations” contained in the letter Mr Curnow-Rose sent to Mr Haley on 6 July 2020 is entirely bereft of factual content. It does not identify the behaviour it is alleged Mr Haley engaged in which constituted the “[a]ggressive and inconsiderate” behaviour. This is relevant to assessing the responses Mr Haley made to the allegations, as Mr Curnow-Rose communicated them to Mr Haley, and in particular whether Mr Haley was dishonest. It may also be relevant to the extent LOA claims Mr Haley manifested a lack of candour in the course of Mr Curnow-Rose’s purported investigation of Mr and Ms P’s complaints.