T12099
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch and Chubb Security Australia Pty Ltd
Industrial dispute - alleged unfair termination of employment - absence of specific allegations - valid reason for termination not proven - procedural fairness denied - reinstatement impracticable - compensation ordered REASONS FOR DECISION [1] On 27 May 2005, the Liquor, Hospitality and Miscellaneous Union - Tasmanian Branch. (LHMU) 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 Chubb Security Australia Pty Ltd trading as Chubb Security Australia (Chubb) arising out of the alleged unfair termination of employment of Michelle Tedeschi. [2] This matter was listed for a hearing (conciliation conference) on 24 June 2005, and listed for hearing on 24 and 25 August 2005 and 7 and 19 September 2005. Final written submissions were received on 7 and 14 October 2005. Mr P Tullgren appeared for the LHMU. Mr T Bourke, of the Australian Industry Group, appeared with Mr P Carey, for Chubb. Background [3] Mrs Tedeschi has been employed as a security guard at Launceston airport for the past 14 years. As a consequence of the roll over of contracts, this employment had been with a number of employers. Since 1 November 2002 the employer has been Chubb. There was another two-year term of employment with Chubb some 10 years previous. [4] Mrs Tedeschi is highly qualified in the security area. She was certainly the most highly qualified staff member at the airport, including the senior supervisor, Mr Greg Brown. [5] Mrs Tedeschi's title was that of "Senior Officer". There was some dispute as to whether this constituted a 2-I/C position at the airport. It would seem however that Mrs Tedeschi performed a supervisory role prior to the arrival of Mr Brown in January 2005. [6] In January 2005 Mr Brown commenced as Senior Supervisor at the Launceston airport. He had previously been employed by Chubb at Adelaide airport. [7] During April 2005 a number of written complaints from staff against Mrs Tedeschi were lodged with Mr Brown, who in turn forwarded these complaints to the State Manager under cover of a memorandum dated 18 April 2005. The memorandum read in part:1
[8] Chubb then commenced an investigation by two senior managers based in Melbourne, Mr David Fitzgerald and Mr Phil Carey. This process involved initially an interview with each complainant, and then Mrs Tedeschi. Subsequently all available staff at the airport were interviewed. [9] On 18 May the employment contract of Mrs Tedeschi was terminated. The letter of termination reads:2
Evidence [10] Sworn evidence was taken from the following witnesses: · Matthew Lyndon Bower; security guard, employed for 18 months. · Michelle Ann Tedeschi; the applicant. · David John Fitzgerald; Human Resources Manager for Victoria and Tasmania, since January 2004. · Noelene Bingley; employed at the airport as an aviation screener, the last three years with Chubb. · Angela Belajic; employed as an aviation screener since June 2004. · Graham Hickey; employed as an aviation screener since March 2003. · Alan Parker; employed as an aviation screener since April 2004. · Philip Carey; employed with Chubb since 1982 in various roles. Administration and Compliance Manager since 2002. · Gregory Roy Brown; employed in the security industry since 1989 and with Chubb since 2001. Senior Supervisor at the Launceston Airport between January and July 2005. [11] Both Mr Tullgren and Mr Bourke made submissions going to witness credit. [12] Mr Tullgren said that each of the security staff company witnesses openly disliked Mrs Tedeschi, were biased against her, and exaggerated events "to reflect their view of what should happen". The evidence of Mr Brown was totally unreliable and lacked credibility. Mr Tullgren said it was "unsafe" to rely on the Chubb evidence. [13] Mr Bourke submitted:
[14] The evidence covered of a raft of allegations and counter allegations, many of which were denied outright. There were numerous examples whereby evidence was either inconsistent or changed significantly under cross-examination. There were a number of aspects of the evidence which were quite unsatisfactory, and, regrettably, simply not believable. These unsatisfactory aspects were not however limited to one witness, which ordinarily, might lead to an adverse finding as to witness credit, and a consequent preference for one witness's evidence over another. [15] As this case turns more on process than substance, it is unnecessary in most cases to make findings as to fact where the evidence is in conflict. The Investigation [16] On receipt of the written complaints Mr Fitzgerald and Mr Carey were appointed to conduct an investigation (the investigation team). It was submitted by the respondent that these two were chosen to ensure a degree of independence from the Tasmanian management. [17] Initially staff who had lodged complaints were interviewed. Mrs Tedeschi was then interviewed. She was not shown the complaints, but rather, was provided with an outline of the nature of the allegations. Mr Fitzgerald said:3
[18] Mrs Tedeschi denied the allegations put. She also made a number of complaints relating to what she considered to be a lack of support from Tasmanian management. She further requested that a number of other staff be interviewed. Mrs Tedeschi was stood down with pay and the investigation team returned to Melbourne. [19] They returned to Tasmania a week later to complete the investigation. This included interviewing all available staff, whether they had lodged a complaint or not. [20] A further meeting with Mrs Tedeschi occurred on 13 May 2005. At this meeting Mrs Tedeschi provided written statements from three employees. These statements were supportive of Mrs Tedeschi, and outlined instances whereby other staff members and senior management allegedly created a difficult working environment for Mrs Tedeschi. [21] At both meetings Mrs Tedeschi was accompanied by her husband and the union delegate. [22] Messrs Fitzgerald and Carey returned on 18 May and terminated the services of Mrs Tedeschi. The Nature of the Evidence [23] It was acknowledged by the company witnesses that some of the material in the written complaints was not in a form that could be raised as an allegation. Mr Carey's evidence was:4
[24] Mrs Tedeschi said that the specifics of the allegations were not put to her.5 [25] This was refuted by Mr Fitzgerald who said "the details of the complaints were read out to her at the time".6 [26] It was this aspect of the evidence that was subject to close cross-examination by Mr Tullgren. There is no purpose in recording this detailed analysis of the complaints. Suffice to say that I am satisfied that the allegations were put in the broadest sense, with an absence of specifics such as time, place and persons involved. [27] The substance of the complaints, as described by Mr Carey, "was that she had been intimidating other employees and also undermining the supervisor".7 These allegations resulted in a "flat denial"8 on Mrs Tedeschi's part. [28] Mrs Tedeschi was asked whether she had threatened to sue any fellow staff member. Her statement reads:9
[29] This statement was not shaken under cross-examination. I am satisfied that no specific examples of threats to sue were put to Mrs Tedeschi, either during the initial investigation or the subsequent hearing. [30] At the conclusion of his evidence, Mr Fitzgerald said:10
[31] Mr Brown agreed that he did not put the details of the written complaints to Mrs Tedeschi.11 [32] Mr Brown acknowledged that he was aware of certain "blue book" breaches by other staff whereby management took no action.12 [33] In relation to his relationship with Mrs Tedeschi, Mr Brown said:13
[34] As to the involvement of others in the workplace environment, Mr Brown said:14
Specific Incidents [35] There were a number of specific incidents that assume some importance in the overall context of the case. First and Final Warning Incident: [36] The following is an extract from Mrs Tedeschi's statement:15
[37] It transpires that a complaint from the general public was lodged with the Hobart management. Mrs De Vere was interviewed and initially claimed that she said "nick off Michelle". Later she acknowledged that she said, "fuck off". [38] Subsequently Mrs Tedeschi was issued with a "First and Final Written Warning". Mrs Tedeschi protested strongly to Mr Brown, claiming that such a warning was unfair. She also sent a two-page e-mail to the State Manager, Mr Bobar, seeking a review of this decision. The e-mail was not answered. [39] It would seem that Mrs De Vere received a lesser warning, or counselling. The Graffiti Incident: [40] During March 2005 graffiti appeared in both the male and female public toilets at the airport. One read:
[41] The other read:
[42] Mrs Tedeschi complained vigorously to Mr Brown, and later to Mr Bobar. It would seem that Mr Brown did take steps to have the graffiti removed (painted over). However company management declined to conduct an investigation as to the perpetrator. Mr Brown's First Day: [43] Mr Brown commenced at the airport some time in January 2005. He said that he spent the previous evening with Mr Bobar, going through personnel files. [44] On commencement of his first shift he introduced himself to all staff, other than Mrs Tedeschi. He did not approach Mrs Tedeschi until some 20 minutes later, claiming (and I accept) that Mrs Tedeschi was out of sight behind a screening machine. He said words to effect:
[45] Questioned as to the use of the word "infamous", Mr Brown denied that it was proffered in any snide or derogatory sense, instead suggesting that it was probably a reference to Mrs Tedeschi's impressive qualifications. Explosives Trace Detection (ETD) Procedures Incident: [46] Whilst the evidence in relation to this incident is somewhat unclear it would seem that Mr Brown admonished Mrs Tedeschi for approaching QANTAS (Mr Woodruff) and speaking in derogatory terms as to Mr Brown's knowledge of the above procedures. This he said was a serious "blue book" breach. It would also seem that this incident weighed heavily with Mr Brown in that he referred to it in his memorandum of 18 April enclosing the written complaints.16 [47] According to Mrs Tedeschi she told Mr Brown that she approached Mr Woodruff concerning the Jetstar "numbers". It was Mr Woodruff who expressed concern as to the ETD procedures. Mrs Tedeschi advised Mr Woodruff that he would have to take that up with Mr Brown and denied making any derogatory remarks. Further, she was forbidden to approach Mr Woodruff to seek clarification. [48] Mr Brown did not approach Mr Woodruff, instead relying on what he had apparently been told by another staff member. [49] The investigation team similarly did not approach Mr Woodruff. The Airport Incident: [50] Mrs Tedeschi was returning on a flight from Sydney and of necessity passed through the screening area. The evidence of Mr Parker was as follows:17
[51] Ms Belajic largely confirmed this evidence.18 [52] When this issue was put to Mrs Tedeschi, she said:19
Findings [53] In this matter the issues of substance and process are inextricably bound together. [54] It is clear that the workplace was, in the period January through May 2005, an unhappy one. It would also seem that Mrs Tedeschi exhibited behavioural traits that had the capacity to upset a number of staff members. Whether this pattern of behaviour, to the extent that it existed, amounted to grounds for dismissal, is another matter. It is also pertinent to consider whether Mrs Tedeschi's behaviour, if handled differently by management, might have led to a different outcome. [55] It is also clear from the evidence that some staff members felt that others were creating a difficult working environment for Mrs Tedeschi. It is pertinent that Mr Brown conceded that Mrs Tedeschi was not alone in creating an unhappy workplace. [56] The Commission was not informed as to how six written complaints were lodged within a few days of each other. I do however have difficulty in accepting that this was entirely coincidental and that there was no discussion between those involved. [57] I deal now with the investigation process. [58] It is clear that Chubb devoted considerable resources to the investigation process. Senior management, independent of the Tasmanian operation, conducted the investigation. All available staff were interviewed. Mrs Tedeschi was given opportunity to respond to the allegations as they were put, and she was allowed the opportunity to have a person of her choice present. [59] I am satisfied that Mrs Tedeschi was fully aware of the broad allegations against her; those being that she intimidated other staff members and undermined the authority of the Senior Supervisor. [60] She flatly denied these broad allegations. [61] From that point on the investigation process, in my view, was flawed. [62] Faced with an outright denial of the allegations, it was incumbent on the investigation team to probe further, outline specific allegations, rather than broad generalisations, and take steps to test the veracity of the allegations made by others. This did not occur, and I am left with the conclusion that the investigation team simply accepted on face value the allegations of others and rejected the denials of Mrs Tedeschi. [63] If Mrs Tedeschi was in the habit of threatening to sue fellow staff members then it would seem a fairly straightforward process to present her with at least one actual example. This did not occur. [64] Similarly it seems quite extraordinary that no attempt was made to contact Mr Woodruff to clarify the EDT procedures incident. [65] I accept on the authority of Fearnley v Tenex Defence Systems Pty Ltd20 that the employer is not obliged to provide that actual written complaints "provided the employee is given a fair chance of answering them (the allegations). [66] In the absence of specific allegations I conclude that Mrs Tedeschi was denied a fair chance of answering them. [67] The management of this workplace during the relevant period also seems to have been less than optimum. [68] The comment from Mr Brown on his first day as the "infamous Michelle" being a reference to her impressive qualifications was highly unusual, and frankly, barely believable. [69] Given Mr Brown's level of concern as to Mrs Tedeschi's behaviour patterns, his efforts at counselling seem disproportionately light handed (one occasion on Mr Brown's evidence).21 [70] I also feel that Mrs Tedeschi was entitled to a more robust response from management in relation to the graffiti incident. At the very least there should have been an attempt to discover whether the perpetrator was employed by Chubb. [71] In normal circumstances the Commission would not revisit the fairness or otherwise of previous warnings. However in this case the incident was recent and fiercely contested by Mrs Tedeschi. On the facts as presented in this hearing, it does seem to me that the actions taken by management in respect of the two employees involved, was something less than even-handed, to the detriment of Mrs Tedeschi. [72] It would seem that there were behavioural issues at this workplace involving Mrs Tedeschi, and perhaps others, that demanded management attention. Proper investigation of issues as they arose, coupled with appropriate coaching and counselling, may well have avoided this unfortunate outcome. [73] It is possible that Chubb may have had a valid reason for termination, but the company has fallen a long way short of satisfying the onus of proving that this was the case. [74] I also conclude that, to the extent that specific allegations were not put, Mrs Tedeschi was denied procedural fairness. [75] It follows that I find that Mrs Tedeschi was unfairly terminated. Remedy [76] Mr Tullgren sought reinstatement, or if that was found to be impracticable, the maximum available compensation (six months' salary). [77] From the available evidence I am satisfied that the airport was a deeply unhappy workplace at least between January and May 2005. It is also clear from the evidence that this has changed for the better since Mrs Tedeschi's departure. I do not necessarily conclude that Mrs Tedeschi was solely responsible for this workplace environment; indeed the evidence would suggest otherwise. However the fact that this has occurred is undeniable. [78] I am also concerned that the behaviour described in the airport incident above is symptomatic of an ongoing and irretrievable animosity between Mrs Tedeschi and a group of employees, and vice versa. [79] In my view it would be impracticable to reinstate Mrs Tedeschi. [80] Mrs Tedeschi has been employed at the Launceston airport for 14 years, albeit with a number of employers. This is a consequence of the contract nature of the security industry and beyond the control of Mrs Tedeschi. For the purposes of assessing compensation, Mrs Tedeschi should be considered as a relatively long-serving employee. [81] There was no evidence of any employment blemishes prior to the early part of 2005. [82] Mr Tullgren contends that Mrs Tedeschi could have reasonably expected to continue employment for at least another 10 years. [83] It would seem to me that there were behavioural issues attaching to Mrs Tedeschi (and perhaps others), which needed to be addressed and managed. It is less clear as to what the precise nature of these behavioural issues were. [84] In my view a reasonable time frame for a behavioural management program involving counselling, coaching, review and feedback would be four months. The outcome of such a process involves speculation and it would be unsafe to make firm predictions one way or another. [85] I assess compensation as the equivalent of four months' salary. ORDER Pursuant to s.31 of the Act I hereby order that Chubb Security Australia Pty Ltd trading as Chubb Security Australia, pay to Ms Michelle Tedeschi an amount equivalent to four months' salary, such payment to be made not later than 5.00pm Thursday 15 December 2005.
Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A2A Att. I
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