T10134
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 The Australian Workers' Union, Tasmania Branch and Adelaide Mushrooms Nominees trading as Tasmanian Mushrooms
Industrial dispute - alleged harsh and unreasonable conduct by the employer applying a disciplinary process to an employee - first and final warning - jurisdiction - industrial matter - jurisdiction found - denial of procedural fairness - warning misplaced on the facts - recommendation REASONS FOR DECISION [1] On 15 April 2002, The Australian Workers' Union, Tasmania Branch (AWU) 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 Adelaide Mushrooms Nominees trading as Tasmanian Mushrooms arising out of the alleged harsh and unreasonable conduct by the employer applying a disciplinary process to Cheryl Davey. [2] When this matter came on for hearing, Mr R Flanagan appeared for the AWU on behalf of Mrs Cheryl Davey. Mr A Flood of the Tasmanian Chamber of Commerce and Industry Limited (TCCI) initially appeared for the employer, together with Mr D Schirripa. Subsequently Mr A Cameron appeared in the place of Mr Flood. [3] Mrs Davey is a mushroom picker employed by the employer on a piecework basis for the past two years. [4] At all relevant times Mrs Davey was an on-site union representative appointed by the AWU. Whilst there was some suggestion that the employer had advised other staff members that Mrs Davey was not properly elected1, this was not pursued during the hearing. Consequently I accept that Mrs Davey was a union representative properly appointed by the AWU. [5] On 27 September 2001 the parties were subject to proceedings before Commissioner Shelley concerning the approval of a s.55 Industrial Agreement. Mrs Davey appeared with the union representatives on that occasion. [6] Prior to the commencement of the shift on 28 September 2001, Mrs Davey approached a number of employees inviting them to sign a form, the effect of which was to appoint the AWU as a "bargaining agent". [7] It would appear that later that morning management convened a meeting of employees. The purpose of that meeting is not clear and probably not particularly relevant. Nonetheless shortly thereafter a number of employees approached Mrs Davey with signed "revocation of bargaining agent" forms, and seeking a return of the earlier form appointing the AWU as bargaining agent. Mrs Davey complied with these requests. [8] On 3 October Mrs Davey was advised that the employer was in receipt of two letters from fellow staff members "... accusing you, Cheryl, of harassing, intimidating and pressuring them, in signing particular documents, in a vocal or body language manner that they have felt threaten [sic]".2 [9] Following a further meeting on 10 October Mrs Davey was issued with a written "third and final warning" expressed as follows:3
[10] There was some confusion as to whether the warning was a "third and final warning" as written, or alternatively, a "first and final warning". It is clear however that Mrs Davey had no previous warnings and it follows that the only sensible construction is that it be viewed as a "first and final warning". [11] The matter was first listed for a conciliation conference on 22 May 2002. At the conclusion of the conference an agreed statement was issued in the following terms:
[12) On 22 August the AWU wrote to the Commission in the following terms:
[13) At the request of the employer, and with the consent of the union, the subsequent hearing was delayed until 21 November 2002. This in itself created some difficulties in that witnesses were asked to reconstruct events and conversations more than 12 months old. [14) Mr Cameron raised a preliminary argument contending the Commission lacked jurisdiction to hear and determine the matter. With the consent of the parties, both the jurisdiction and merit arguments were run to completion on the understanding that the jurisdictional question would be determined first. [15) Evidence was taken from the following witnesses:
Jurisdiction [16) The applicant seeks an order pursuant to s.31 of the Act, the effect of which is to require the withdrawal of the warning issued to Mrs Davey. [17) Section 31[1] states:
[18] It naturally follows that an order may only be issued in relation to the settlement of an "industrial dispute", which in turn means a dispute in relation to an "industrial matter". [19] Section 3 of the Act defines industrial matter as follows:
[20] Subsection [c] specifically excludes matters such as trading hours, workers' compensation, preference and discretionary bonus payments. [21] There is also a related jurisdictional issue which goes to the question of whether the rules of natural justice, or perhaps more accurately, procedural fairness, apply in the instant case. [22] Mr Cameron acknowledged that the courts had applied a broad construction to the expression "any matter pertaining to the relations of employers and employees". However Mr Cameron submitted that the matter in dispute must relate to industrial relations in the overall context of the legislation. He referred to the judgement of Gibbs CJ in Federated Clerks' Union of Australia [FCU] v Victorian Employers' Federation:4
[23] Mr Cameron submitted that the matter before the Commission does not relate to the terms and conditions of employment as generally understood. He said:5
[24] Mr Cameron said the warning is an indication as to what things will bring about the termination of the contract and was no different to an induction policy that outlines the circumstances that might lead to a summary dismissal. The warning did not change the terms and conditions of employment applicable to Mrs Davey. He said:6
[25] On the question of natural justice, Mr Cameron noted that recent amendments to s.30 of the Act made it quite explicit that procedural fairness is to be afforded in the case of a termination. This did not appear anywhere else in the statute. He said that if it was the intention of Parliament that the Commission have the jurisdiction to review warnings and assess whether or not procedural fairness had been applied, it would have been explicitly provided for in the Act. [26] Mr Cameron submitted that the Commission's jurisdiction in relation to warnings did not crystallize until there was an actual termination. If that did occur, the Commission would then be within power to look at the procedural fairness of earlier warning/s that may have been a factor in the ultimate termination. [27] Mr Flanagan submitted, that based in a line of authorities including Manufacturing Grocers7 and FCU, for there to be an industrial dispute, a matter must be connected with the relationship between an employer in his capacity as an employer and an employee in his capacity as an employee, in a way which is direct and not merely consequential. [28] Mr Flanagan said that the matter of employment security "is a matter which directly and materially concerns the relationship between the employer and the employee". [29] And later:8
(30] Mr Flanagan relied in particular on the FCU case, which he said had the issue of employment security "at the heart". A number of extracts were referred to: Gibbs CJ:9
Mason J:10
Murphy J:11
Deane J:12
[31] Mr Flanagan submitted that there is a presumption that when an employer exercises a disciplinary procedure, it will be done in a manner that is fair, which in turn invokes the notion of natural justice or procedural fairness. [32] Mr Flanagan said that whilst the courts have determined that the requirements of natural justice will vary according to the circumstances, there are fundamental propositions that must be applied. Applied to the instant case he said that Mrs Davey should have been given the opportunity to respond to specific allegations made against her. [33] Mr Flanagan referred to the judgement of Strong J in Tobin v State of Victoria13 whereby it was held that the employer had invalidly exercised his power to dismiss in that the allegations had not been put in a manner that gave the employee a proper opportunity to respond. [34] Mr Cameron submitted that Tobin should be distinguished from the instant matter in that it dealt with a termination, not a warning. [35] Mr Flanagan submitted, that on the authority of Kioa v West14, there is a presumption that the rules of natural justice will apply unless there is a specific legislative intention to the contrary. He rejected Mr Cameron's assertion that the absence of a specific statutory requirement should be read as meaning the rules of procedural fairness have no application. [36] Mr Flanagan concluded:15
Finding on Jurisdiction [37) There can be little doubt, on the authority of the FCU case, that a matter impacting on security of employment, if it pertained to the relationship between an employer and employee, would be an industrial matter which could in turn give rise to an industrial dispute. [38) How then do the facts of this case sit with the tests inherent in this observation? [39) I turn firstly to the question of security of employment. [40) The evidence of Mrs Davey was that if she did anything else wrong, "I'm out the door".16 [41) Whilst that view is undoubtedly a worst-case scenario, it is not in my opinion a view that is unreasonably held. [42) The warning document contains the following statement:17
[43) On paper at least the position is categorical; one more strike and you are out. This, coupled with the indefinite duration of a warning "life", creates a situation whereby an employee subject to a final warning could reasonably conclude that their security of employment had been severely compromised, compared with an employee with a clean sheet. [44) I do not accept Mr Cameron's analogy with an induction policy specifying behaviour that might lead to summary termination. The behaviour complained of, even if proven, was not of a nature as to justify summary dismissal, at least in the absence of a prior final warning. [45) I acknowledge Mr Cameron's point that Mrs Davey might not ever be terminated and as such, her employment security is not compromised. The same of course might be said about the FCU case. A redundancy arising from technological change might never happen. Nonetheless the risk of redundancy may well be heightened as a consequence of technological change, and hence the award-based consultative mechanisms, which the High Court found to be valid. [46) In my view a warning is in a similar category. The risk of termination is significantly enhanced, even if it never happens. [47] The second question goes to the connection with the employment relationship. Does the matter in dispute have a connection with the relationship between employer and employee that is direct and not merely consequential? [48] It is not difficult to envisage matters that might impact on employment security but where the connection with employment relationship is anything but direct. Tariff policy, shop-trading legislation, prolonged road closures etc readily come to mind. [49] A final warning however can be readily contrasted with the above examples. A warning is entirely within the purview of the employment relationship. There are no external factors beyond the control of the parties to the employment relationship. Neither is it, in my view, something that may be dismissed as management prerogative and beyond the jurisdiction of the Commission. The reality is that a disciplinary procedure involving a warning can and indeed, has in the past, given rise to industrial disputes in the very real sense of the term. [50] I conclude that the final warning issued to Mrs Davey does constitute an industrial matter that in turn has given rise to an industrial dispute. [51) I find that the Commission does have jurisdiction to hear and determine the dispute. [52) I turn now to the related question of whether the rules of procedural fairness should be applied to the process of issuing a warning. [53) The issue of the natural justice as it applies to administrative tribunals was discussed at length in Kioa v West. Mason J observed:18
[54) And later:19
[55] Mr Cameron acknowledged that in the case of a termination, it would then be appropriate for the Commission to examine the fairness or otherwise of warnings leading up to the termination, and that would include the question of procedural fairness.20 [56] It strikes me that, if it is appropriate to look at the question of procedural fairness at the time of a termination, then the same should apply at the time the warning is issued, assuming of course that a review is requested. To wait until a termination is effected potentially raises huge practical difficulties in that the details of the event may well be lost in the mists of time and/or the key players to the warning are no longer involved with business. [57] At its most basic level, procedural fairness requires that an individual be made aware of the allegations that are made and be provided with an opportunity to respond. [58] In my view the issue of a final warning sits comfortably within the context of "preservation of livelihood or reputation" as found in Kioa v West. [59] I conclude that the basic rules of procedural fairness should be applied in circumstances whereby a warning is issued. To do otherwise is in my view manifestly unfair to the individual. [60] Notwithstanding my finding as to jurisdiction, I should emphasise that the Commission will not lightly interfere with a decision by an employer to issue a warning, final or otherwise. It is well established that in the case of alleged unfair terminations; it is not the role of the Commission to stand in the shoes of the employer. Rather, the role is to assess whether the decision taken by the employer was within the range of options reasonably available, notwithstanding that the Commission might have reached a different conclusion. [61] That principle should, in my view, apply with at least equal force in the case of a warning, assuming that the basic rules of procedural fairness have been observed. [62] I turn now to the merits of the application. Was Mrs Davey Afforded Procedural Faimess? [63) The genesis for the subsequent final warning to Mrs Davey was written complaints lodged by Ms N and Ms S. Whilst Ms N denied that she was asked to write the letter21, it would appear from the evidence of Mr Allan, that the complaints were initially verbal, and that Mr Allan asked that they be put in writing.22 [64) Mrs Davey was called to a meeting with management on 3 October 2001. Whilst it was not practicable to have a union representative present [her preferred option] a fellow staff member of her choosing was present. In the circumstances I find no fault with this procedure. [65) According to the minutes of that meeting23, it was put to Mrs Davey that two staff members had accused her of "harassing, intimidating and pressuring them, in signing particular documents, in a vocal or body language manner that they have felt threaten [sic]". [66) This was denied by Mrs Davey. [67) Management advised that the matter would be further investigated and that she would be advised of the outcome. [68) It would appear that management conducted further interviews with the complainants and Mrs Davey was called to a further meeting on 10 October. [69) Mr Apostolou [for the employer] began the meeting with the following statement:24
[70) Mrs Davey again denied that she had done anything wrong and asked for copies of the letters. This request was denied although she was told the authors of the letters. [71) Mr Apostolou then said:
[72) A first and final warning was given with the admonition "a further or future warning will not be tolerated and will result in the termination of your employment with the Company". [73) The real issue is whether the allegations were put to Mrs Davey with sufficient precision to enable a considered response. The evidence of Mr Allan is enlightening:25
[74) It is reasonable to assume that the statements referred to by Mr Allan were the letters of complaint from Ms N and Ms S. These letters were not provided to Mrs Davey. [75) An objective analysis of the evidence and the minutes of the two meetings leads me to conclude that other than broad generalisations, no specific allegations were put to Mrs Davey as to how she "harassed, threatened, pressured and intimidated fellow workers". [76) Mr Cameron argued that Mrs Davey had the opportunity to ask questions of management. Whilst this is true, it misses the point. The onus is on the person making the allegations to do so with sufficient precision so as to enable a considered response to be made. This does not mean that the letters of complaint must be provided, but the substance of the complaints must be clearly conveyed. [77) Mrs Davey, having denied the broad generalisations, is not obliged to conduct her own inquiry so as to establish the precise nature of the allegations against her. [78) In all the circumstances I find that Mrs Davey was denied procedural fairness in relation to the complaints made against her. The Nature of the Complaints [79) Given the manner in which this application has been pursued, coupled with my finding as to the absence of procedural fairness, it is now necessary for the Commission to assess the nature and substance of the complaints against Mrs Davey. [80) The evidence of Mrs Davey in relation to the handing out of the forms is as follows:26
[81) Mrs Davey denied threatening employees or implying that they would in some way be endangered if they did not fill in the forms.27 (82) Mrs Davey said that neither Ms N or Ms S had complained to her as to her manner, either at the time the form was handed out or subsequently.28 (83) Mrs Davey denied that she demanded that the form be signed or that she raised her voice.29 (84) Ms S's recollection of the incident is as follows:30
[85) And later:31
[86) Ms S indicated that she initiated the complaint before the Company became involved with the revocation notices.32 This however does not appear to be consistent with facts. It would appear that the revocation notices surfaced following a meeting between management and staff on 28 September. The letter of complaint from Ms S is dated 2 October.33 [87) The evidence of Ms N is as follows:34
[88) And later:35
[89) The background to the incident complained of is not unimportant. The proposed enterprise agreement had been the subject of a dispute hearing before the Commission the previous day. Despite a workplace ballot in favour of the agreement, the union had declined to sign and were seeking changes and ultimately a re-ballot. It would be a reasonable conclusion that the atmosphere at the workplace, in an industrial relations sense, was tense. [90) In that environment it is likely that there would be some employees, Ms N and Ms S included, who wanted no part of the process and any approach from the union, however presented, would have been unwelcome. [91) The role of handing out forms and perhaps even encouraging employees to appoint the union as bargaining agent is a legitimate activity for a union representative, even if it is unwelcome in some quarters. [92) Did Mrs Davey overstep the mark through her behaviour? [93) The initial unprompted response from both Ms N and Ms S was that Mrs Davey spoke "normally". It was only through prompting that some modest embellishments were added. [94) The Macquarie Dictionary provides the following definitions:
[95) Based on the evidence, the above descriptors cannot reasonably be applied to the behaviour of Mrs Davey. [96) At worst, Ms N and Ms S may have felt pressured as a consequence of Mrs Davey's approach. That is not uncommon in relation to any unsolicited approach which occurs in every day life. [97) It may well be that Ms N and Ms S felt intimidated, perhaps even threatened, by the overall environment at the workplace at the time; indeed there is evidence to support that position.36 This tends to be confirmed by the following extract from the 31 May 2002 interview with Ms N:37
[98) Mrs Davey should not however be held responsible for the behaviour of other staff members. [99) In my view the warning to Mrs Davey is misplaced and should be withdrawn. [100) A more appropriate course of action might have been a communication to all staff, including Mrs Davey, reinforcing the Company policy on inappropriate behaviour and equal opportunity. Recommendation [101] I recommend in the strongest possible terms, that the final warning issued to Mrs Davey on 11 October 2001, be withdrawn.
Tim Abey Appearances: Date and Place of Hearing: 1 Transcript PN 714 |