TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Philip Grady Mason
(T11935 of 2005)

and

Caterpillar Elphinstone Pty Ltd

Industrial dispute - written warning - employer's decision within the range of options reasonably open - declined to interfere with employer's decision

REASONS FOR DECISION

[1] On 9 February 2005, Philip Grady Mason (the applicant) applied to the President, pursuant to Section 29(1) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with Caterpillar Elphinstone Pty Ltd in respect to a first written warning.

[2] This matter was listed for a conciliation conference on 1 March 2005 and further listed for hearing on 7 April 2005. Appearances: Mr R Flanagan (7/4/05) and Mr I Jones (1/3/05), of The Australian Workers' Union, Tasmania Branch, appeared for the applicant. Mrs V Middleton (7/4/05), of the Tasmanian Chamber of Commerce and Industry Limited, Mr A Ransley (1/3/05 and 7/4/05) and Mr M Watkinson (1/3/05), appeared for the respondent.

[3] This matter concerns an incident that occurred at approximately 8.30am on 31 January 2005. The incident involved the applicant and a work colleague, Ms Rachel Long.

[4] Following an investigation of the incident by management, Mr Mason was given a "first written warning". The warning is to "expire" on 1 February 2007 and contained the notation "Continuation of this conduct will lead to termination of your employment".

[5] A conciliation conference on 1 March 2005 failed to resolve the dispute and as a consequence the matter proceeded to formal hearing.

[6] The applicant seeks the withdrawal of the written warning. In the alternative it was submitted that a formal counselling would have been an appropriate management response.

Evidence

[7] Sworn evidence was taken from the following witnesses:

· Philip Grady Mason, the applicant, Design Draftsman, employed for five years.

· Rachel Elizabeth Long, Marketing Administrator, employed for two years.

· Donald David White, Engineering Resources Manager for the past 18 years, with 23 years' employment in total.

· Malcolm John Watkinson, Product Development Manager for the past 14 months, with 10 years' employment in total.

· Andrew John Ransley, Managing Director for the past five years, with 14 years' employment in total.

The Incident

[8] The following events occurred on Monday 31 January 2005.

8.00am approx.

[9] Mr Mason met with Chris Gehner, Ms Long's senior manager. Mr Mason felt that he was not being treated in a professional manner when dealing with Ms Long. The substance of the complaint related to Ms Long's use of "nick names" and other comments which Mr Mason considered inappropriate. Mr Gehner undertook to discuss the matter with Ms Long.

8.30am approx.

[10] It was common ground that an incident took place although the substance of the incident is not agreed.

[11] Mr Mason described the incident as follows:¹

"So, what do you say actually did occur at that time?---Rachel Long came into the drawing office and after she finished talking to somebody else came and talked to me and said, "Good morning, Phil," which I thought was very inappropriate for her because she hasn't spoken to me for quite some time. And then I turned round in my chair and said to Rachel that I didn't wish to speak with her unless it was of a work nature and kept things professional, more or less those words. This was because I had just previously been in to Chris Gaynor's office and spoke with Chris Gaynor about her professionalism and knew she was after a bite from me.

Okay. So how would you describe your relationship with Rachel?---This has not been the first time Rachel and I had something like this happen. Previously she's come into the drawing office some time back and been very outspoken and more or less implied that I was incorrect and I didn't know what I was talking about relating to an issue at hand and I turned round to Rachel and said to her, "Here's the documents, this is what we're going by," and she promptly went very quiet and said, oh, she'd made a mistake. So this, at that time I was upset and I went to Don White and asked Don, I told Don about the matter and said, "She's acting unprofessionally and that if she's going to come into the drawing office and rant and rave like she did - she needed to settle down a bit."

Okay, and that is the nature of the comment that you made to her at 8.30 am on 31 January, is it, that she was unprofessional?---Yes, I've said that she's unprofessional again, yes.

So, can you tell me when you said that did you say that in an aggressive or hostile manner?---No, not at all. I turned round in the chair and just said to Rachel, yes, very calmly.

Very calmly?---Yes."

[12] Ms Long's recollection of the same incident was as follows:²

"Ms Long, can you just lead us through the event that occurred on 31 January 2005 with Mr Mason?---Certainly. I approached Mr Mason that morning, as he had been on annual leave the week before, I have to communicate with him on a regular basis for the update of the marketing material, spread sheets, brochures, websites, so forth. So I approached him that morning, as I said, in what I deemed as a pleasant and friendly manner and was told to, "Eff off and annoy somebody else." I then inquired to Mr Mason as to what I had done to upset him, and he said, "You know," and I said, "Well, I'm sorry I don't know," and he pushed back his chair, stood up and got in my face and said to me, "Let me put it this way, if you were a guy I'd smack you in the mouth," and he then walked off.

Okay. When you say he got in your face what do you mean by that; can you explain?---He was basically in my face, like about this far away, like leaning down.

How did you feel at that time?---Very taken aback and very intimidated."

[13] Even though the incident occurred in an open plan office with numerous staff members present, it would seem that the incident was not overheard. Ms Long said:³

"At the time when you had the conversation with Mr Mason was anyone present?---The drawing office had its normal people working but there was like nobody in the direct vicinity of Mr Mason and I.

So, could anyone have overheard the conversation?---I doubt it. As I said, he was so close to my face and it wasn't like he yelled, it was just that tone, that quiet very angry tone so he didn't like make a big production of the whole thing."

Between 8.30am and 9.15am

[14] The following occurred virtually simultaneously.

[15] Ms Long said she almost immediately spoke with her EEC representative, Mr Ashley Reynolds, who in turn said he would seek further advice.

[16] Ms Long said she then wrote a statement "while it was still fresh in my mind". The statement read as follows:⁴

"At approximately 8.30am on Monday 31 January 2005 I was the victim of a verbal assault by fellow staff member, Phil Mason.

After approaching Mr Mason in what I deemed to be a pleasant and friendly manner due to our previous relationship over the past 20 months, I was told to "fuck off and annoy someone else". I enquired to Mr Mason as to what I had done to upset him and was promptly told that this was a professional environment. He then pushed back his chair and stood approximately 5 centimetres away from my face and told me that if I was a bloke he would smack me in the mouth.

I find this behaviour totally incomprehensible and uncalled for.

I feel my ability to do my job and my own personality has been called into question.

During the past 20 months on a fortnightly basis Mr Mason has come to me requesting promotional items for the purpose of prizes at the fortnightly golf game, I have generally been only too happy to provide these, usually consisting of older items.

At these times Mr Mason and I have always had a good relationship and the ability to `have a joke'.

I feel that after the episode I am no longer comfortable going about my duties considering that I need to converse with Mr Mason on a daily basis in regard to machine specifications and graphics required to update the marketing materials that I am responsible for."

[17] Shortly before 9.00am Ms Long reported the incident to her direct supervisor, Mr Jamie Palmer.

[18] At approximately 8.45am Mr Mason went into Mr Don White's office. He said:⁵

"Firstly, who initiated that meeting, yourself or Don?---I did. I went in to see Don and explained to Don that Rachel had been acting unprofessional, as I just previously discussed, and she was being provocative and I didn't want to talk to her unless it was of a work nature, I let him know that. Yes, and that was it, that was all we discussed."

[19] Mr White's recollection of the meeting was:⁶

"But the meeting on 31 January 2005 that you had with Mr Mason, the meeting at 8.45, can you just share that with us, what happened?---Okay, yes. Phil came in at about that time and asked to have a discussion behind closed doors, so we shut the door. He was fairly agitated, he said that there had been some goings on with Rachel Long. He said in the previous week that there had been, that she had been calling him names that he didn't appreciate, during the week, and he also had a problem with her that he considered that it wasn't conducted in a professional manner, that he had a discussion with one of the people in the engineering office there, that she had had a discussion - I am sorry - that was of a, he considered it was of a private nature and it was unprofessional. So, and that was just some background and then he said that when he was leaving work on the Friday, the previous Friday afternoon, he said to all the blokes in the office, "See you Monday," and she made a comment of something like, "Why bother," which he obviously took offence to, and he must have thought about that over the weekend, I guess, because on Monday morning at 8 o'clock sharp he went straight in to Chris Gaynor's office - Chris Gaynor is Rachel Long's senior manager - and he complained to her that Rachel had been behaving, complained, she had complained to Chris - sorry, I am getting mixed up here, slow down.

That is all right, take your time?---Phil had complained to Chris that Rachel had been behaving like this in the previous week, and when he left the office, I gather it was a fairly short meeting, I'm not too sure but maybe 10 minutes or something, and when he left that meeting he was of the impression that Chris was going to do something about it. Then some time between that when he came out of the meeting he came back to his desk, some time between that and the meeting that he was having with me something else occurred and he said to me that Rachel had come in and called him, said something like, "Good morning, sausage," or something, called him another remark that he didn't appreciate as well, and he said to her - he told me that he said to her, "You're acting - this is a professional office and you're acting, in my opinion, in an unprofessional manner." Then he said the words, "If you were a bloke I'd smack you in the mouth." At that point I said to Phil that, up to that point he was doing everything right. Through our anti-discrimination training that we've all had we've all been taught to, if somebody is calling you a name that you have to react straight with that person and say the words, "I don't appreciate you calling me that name, I want you to stop." If they don't stop then you're supposed to take it to a anti-discrimination - I forget what they're told - like a counsellor kind of thing, to have it sorted out, and I did and explained to him because he had at least gone and reported it to Chris Gaynor, which was, you know, next to doing the right thing but he really should have said those words to her, to tell her to stop first, and that now that he's uttered these words to her in my opinion the shoe's on the other foot, and he's now the offending party, the pressure's back on him. So I explained that to him and that was the end of the discussion."

[20] Mr White said that he prepared a written statement of the meeting later that day.⁷

[21] In relation to the alleged comment, which is central to this application, Mr Mason's evidence was:⁸

"As I understand it the company has contended that it has been - let me rephrase that. There is an allegation that at that time you said to Rachel Long, in part, that if she was a man you would smack her in the face. Do you recall saying that to her?---No.

Do you deny saying that to her?---Yes."

[22] Mr White said that he first heard of Ms Long's complaint when Jamie Palmer came into his office at approximately 9.15am. Mr White said he had never seen Ms Long's written complaint.⁹

Balance of 31 January 2005

[23] A number of meetings took place during the balance of that day which related, directly or indirectly, to the investigation of the 8.30am incident. As there is no suggestion that the investigation lacked procedural fairness, it is unnecessary to canvas these meetings in any detail.

[24] During the morning Ms Long was counselled by management "as to the etiquette of using nicknames at work and asked to refrain from doing that from now on".

1 February 2005

[25] At 12noon Mr Mason was interviewed by Messrs Ransley, Watkinson and White in the presence of Scott Harding, the EEC Chairman (agreed witness for Mr Mason).

[26] Following a detailed canvassing of the issues Mr Mason was given a "first written warning".¹⁰

Other Relevant Documentation, Evidence and Closing Submissions

[27] Ms Long said she felt threatened by the alleged comment concerning the "smack in the mouth." ¹¹

[28] Mr Ransley said he felt that Mr Mason's behaviour constituted a much more serious offence than that of Ms Long in that it amounted to "intimidation, a physical threat".¹² He went on to explain the rationale for the warning:¹³

"Can you please explain to the Commission, Mr Ransley, how you or the committee - I guess, the committee or interviewer, sorry - came to the determination that a written warning was required?---Sure. After we'd reached the end of the interview process, I guess, we talked about the appropriate action and we, in our minds, felt that it was clear there had been intimidation or harassment to the extent that Rachel Long felt harassed, and our policy states quite clearly that any serious offence, such as harassment, should result in a written warning; so that's why we took that action. It was a matter of deciding had there been harassment. We felt there had, and the appropriate response, as per our procedure, was a written warning. So that's the process we went through to decide on the outcome."

[29] The company dispute resolution procedure¹⁴ involves a sequence of processes commencing with a discussion between the employee and immediate supervisor through to reference to the Tasmanian Industrial Commission for conciliation and/or arbitration. Outcomes from a disciplinary procedure include counselling, a first, second and final written warning, and dismissal.

[30] The following notation appears on the Policy/Instruction relating to Disciplinary Action:¹⁵

"Major infringements (eg. Stealing, breaching the Alcohol and Drugs Policy, blatant breach of safety procedures, assault, harassment, gross insubordination, serious neglect, fraud etc.) will result in the employee receiving a final written warning, or if deemed serious enough, instant dismissal."

[31] In closing submissions Mr Flanagan contended that Mr Mason had a very good employment record over five years. He had not previously been subject to the disciplinary procedure.

[32] Mr Mason had denied the substance of the alleged offence. Mr Flanagan submitted that it was not open to the company to prefer one version of the incident to the other. However if the Commission was against him on that, the offence complained of did not amount to a direct threat. In the circumstances the appropriate response would be a counselling in place of the written warning.

Findings

[33] At the heart of this matter is the question of whether or not Mr Mason directed the statement "If you were a bloke I would smack you in the mouth" at Ms Long.

[34] This is an unusual expression, which could not be said to be part of everyday conversational vocabulary.

[35] Mr Mason denied that he said it. Yet Mr White said that when he and Mr Mason met at 8.45am, Mr Mason volunteered that he had made the statement.

[36] Mr White was unaware that Ms Long was in the process of lodging a complaint at the same time he was meeting with Mr Mason. From the evidence it is clear that Mr White had no knowledge of the complaint until shortly after the conclusion of his meeting with Mr Mason.

[37] In the circumstances I am satisfied that Mr Mason did direct the expression complained of at Ms Long.

[38] The remaining question is whether the company decision to issue a written warning was reasonably open to it.

[39] The company contends that the expression amounted to intimidation and a physical threat, a point contested by Mr Flanagan. This is essentially an exercise in semantics. As Mrs Middleton submitted, it is clear from the evidence that Ms Long felt threatened by the expression and the manner in which she said it was conveyed.

[40] In exercising its discretion pursuant to s.31 of the Act, it is not the role of the Commission to determine what it would have done, faced with the same circumstances.

[41] In any given disciplinary process there are a number of options available to an employer, ranging from "do nothing" to "dismissal". The role of the Commission is to determine whether the option chosen by the employer was reasonably open to it.

[42] Taking into account Mr Mason's apparently unblemished record, the element of provocation and the duration of the term of the warning, it is arguable that the decision taken by the employer in this case is towards the harsher end of the range of options available to it. Nonetheless a written warning in the manner expressed was not, in my view, outside the range of actions reasonably open.

[43] For these reasons I decline to interfere with the employer's decision to issue a written warning.

[44] I so order.

Tim Abey
COMMISSIONER

Appearances:
Mr R Flanagan (7/4/05) and Mr I Jones (1/3/05), of The Australian Workers' Union, Tasmania Branch, for Mr P G Mason
Mrs V Middleton (7/4/05), of the Tasmanian Chamber of Commerce and Industry Limited, Mr A Ransley (1/3/05 and 7/4/05) and Mr M Watkinson, for Caterpillar Elphinstone Pty Ltd

Date and Place of Hearing:
2005
March 1
April 7
Ulverstone

1 Transcript PN 90 to 94
2 Supra 433 to 435
3 Supra 446/7
4 Exhibit R2
5 Transcript PN 108
6 Supra 545 to 546
7 Supra
8 Transcript PN 88/9
9 Transcript PN 669
10 Exhibit R2
11 Transcript PN 472 to 486
12 Supra 790
13 Supra 773
14 Exhibit A1
15 Exhibit A2