“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v CSL Limited T/A CSL Behring

[2020] FWC 6068

[2020] FWC 6068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
CSL Limited T/A CSL Behring
(C2020/3667)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 NOVEMBER 2020

Alleged dispute about a matter arising under an enterprise agreement – Commission asked to determine whether written warning was a fair outcome – warning found to be unfair and recommended alternate outcome outlined.

[1] On 19 May 2020, the Australian Manufacturing Workers’ Union (AMWU) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute pursuant to clause 1.7 of the CSL Agreement 2018 (the Agreement) on behalf of its member and CSL Limited T/A CSL Behring (CSL) employee, Ms Shania Shegedyn.

[2] Clause 1.7 of the Agreement is broadly expressed, empowering the Commission to deal with disputes between the parties covered in relation to matters arising under the Agreement or in relation to the National Employment Standards (NES). Ms Shegedyn is aggrieved at having received a warning.

[3] There is no dispute between the parties regarding the process adopted in relation to the investigation conducted by CSL. It is the substantive outcome that is in dispute and this decision will only concern whether the issuance of the warning to Ms Shegedyn was fair, with the parties having agreed that the Commission has jurisdiction to determine the question “Was the Warning fair?”

[4] The dispute has been the subject of two conferences and a hearing before me and the parties have filed and served outlines of submissions and witness statements pursuant to my directions, to which I have had regard in determining the question before me.

Background to the dispute

[5] Ms Shegedyn commenced full-time work for CSL in December 2018. Prior to this, she had been a self-employed professional photographer for many years.

[6] The following parts of Ms Shegedyn’s contract of employment signed 16 November 2018 and CSL’s Code of Responsible Business Practice (CSL Code) provide some context:

(a) in Clause 2.2 under Duties, Ms Shegedyn’s employment contract states, “during your employment you must …...(m) not, without the prior written consent of the Company, enter into any other employment or engage in any activity for any other business, organisation or venture that could conflict with or be detrimental to or interfere with the interests of the Company or the performance of your duties.”

(b) in Clause 2.8 the Conflict of Interest of the CSL Code, it is stated:

•  “A conflict of interest can occur where an employee’s personal interests may compromise or put at risk an employee’s obligation to faithfully serve the interests of CSL.”

•  “…where there is a doubt as to whether a conflict of interest exists, employees must disclose the apparent or actual details of the potential conflict to their supervisor/manager or to CSL Legal. In all cases, any decision taken to manage the conflict must be endorsed by CSL senior management and documented appropriately”; and

•  “to avoid any potential or perceived conflict of interest, an employee must seek permission from their supervisor/manager in order to commence or continue any outside employment.”

[7] In September 2019, Ms Shegedyn injured her left arm at work and made a workers’ compensation claim, which was investigated by CSL. During this process CSL discovered Ms Shegedyn had performed an eight-hour photo shoot on 24 July 2019 on the set of the television programme The Block. Ms Shegedyn had taken annual leave on 23 and 24 July 2019 in order to do this.

[8] CSL commenced disciplinary proceedings against Ms Shegedyn in early-2020. It asserted that in continuing her photography business after commencing employment with CSL, Ms Shegedyn had acted in a manner that was contrary to her obligations as a CSL employee. By letter dated 7 January 2020, CSL advised Ms Shegedyn that it had “commenced an investigation regarding serious concerns involving your conduct and the potential breach of the CSL’s Code of Responsible Business Practice, your Contract of Employment and CSL’s values, specifically integrity.” Ms Shegedyn was suspended from duty with pay for the duration of the investigation. A meeting took place on 9 January 2020, following which CSL sent a letter dated 13 January 2020 to Ms Shegedyn. This letter confirmed what CSL alleged to be Ms Shegedyn’s misconduct, her responses and its findings. CSL’s findings in relation to the alleged misconduct were as follows:

•  A failure to disclose outside employment as a freelance photographer to CSL – substantiated;

•  A failure to answer the Pre-Employment Health Assessment honestly – substantiated; and

•  Wilfully withholding information, providing misleading, and in some cases, false information to QBE Insurance (Australia) Limited (QBE) during the Workers’ Compensation Application process – substantiated.

[9] CSL outlined that it considered that Ms Shegedyn’s conduct represented a serious deterioration in trust in the employment relationship and that her responses and behaviour demonstrated a lack of recognition and understanding of its concerns. Ms Shegedyn was advised that CSL was considering terminating her employment on that basis and was invited to a further meeting, at which she would have an opportunity to respond to CSL’s concerns and provide any information that it should take into account before a final decision was made.

[10] The meeting took place on 14 January 2020, and on the following day, Ms Shegedyn says she received a telephone call to attend a Show Cause meeting, during which she was advised that the allegations had been substantiated and that she would receive the warning.

[11] The formal warning was conveyed in writing in a letter dated 31 January 2020 from Mr Tyson Parker, CSL Manufacturing Area Manager, which included the following:

“During the investigation, your responses lacked recognition and understanding of CSL’s concerns. Taken together with the above investigation findings, CSL was concerned that your conduct represented a serious deterioration in trust in the employment relationship, particularly, your ability to abide by CSL policies and expectations, both of which are critical given the requirement of your role to work in a regulated GMP environment.

During the show cause meeting on 14 January, you demonstrated sincerity and remorse. You apologised for the misunderstanding and stated it was never your intention to mislead or withhold information from CSL. This was considered when determining an appropriate outcome.

Whilst you demonstrated remorse in the show cause meeting, there were discrepancies in some of your responses…

CSL places significant weight in its values, including that of Integrity, which means we are honest and ethical at all times. As previously mentioned to you in the outcome meeting on 15 January 2020, CSL is not convinced on the balance of probabilities that you unwittingly made a mistake in good faith on all three of the above occasions. Further, it is reasonable to expect you would have sought further clarity from the appropriate personnel when providing official responses (allegation 2 and 3 above).

In consideration of all the information contained above, I have decided to issue you with a formal written warning. A copy of this written warning will be kept on your personnel file and services as notice that any further breaches of CSL policies or procedures may result in further disciplinary action taken against you, up to and including dismissal.”

[12] Ms Shegedyn appealed the warning internally under CSL’s workplace complaint resolution procedure but her appeal was dismissed. Subsequently, the AMWU made this application to the Commission on her behalf.

Consideration

First allegation - failed to disclose outside employment as a freelance photographer

[13] I accept that at Ms Shegedyn’s job interview she advised that after approximately 20 years as a freelance photographer she was looking to discontinue her photography business in exchange for more stable employment and income. I also accept that the word “transition” was used and that it was understood that Ms Shegedyn could not start for a few weeks because she had some pre-planned photo shoots to complete.

[14] Further, I am satisfied that following the commencement of her employment with CSL, Ms Shegedyn completed just two photography jobs. They were minor and of minimal duration and I am satisfied that they were not of a nature that would have compromised the requirement that she obtain adequate rest between her shifts at CSL. I also note and accept that Ms Shegedyn had legitimate reasons to maintain both her ABN in the short term (for legacy issues such as her tax and royalties) and website (pride in her years of work) and observe that she cancelled her insurance policy for the photography business almost immediately upon completion of her last photoshoot. These matters weigh in her favour.

[15] My assessment is that there were crossed wires arising out of Ms Shegedyn’s job interview when it came to the nature of Ms Shegedyn’s outstanding photography commitments but ultimately, Ms Shegedyn acted consistently with her account because she performed just the two photoshoots. However, I acknowledge Ms Shegedyn had a broader conception of the time period within which ongoing commitments could be completed than that of CSL. I also recognise that she adopted a literal interpretation of her obligations under the CSL Code and her Contract of Employment and the examples of a conflict of interest.

[16] Given that the two photoshoots took place in March 2019 and late-July 2019, I consider the more prudent course for Ms Shegedyn would have been to circle back to the discussion that was had at the job interview, so that CSL could have been aware of the timing of her activity and any concerns it might have had about a possible conflict of interest could have been discussed and allayed. Such dialogue would have ensured that if there was a concern about when the photoshoots were taking place having regard to Ms Shegedyn’s work shifts at CSL and her capacity to get sufficient rest and recovery, roster adjustments or leave arrangements could have been made. Further, Ms Shegedyn could have explained the nature of the work, the equipment she would be using and outlined that she would have an assistant helping her. Finally, CSL would have been in a position to satisfy itself as to whether or not there was anything about either photoshoot that would be detrimental to its interests.

Second allegation – failed to answer pre-employment health assessment honestly

[17] The second allegation arises out of Ms Shegedyn writing “Shania Shegedyn Photography” in the box under a heading marked “previous employer” when completing the Pre-Employment Health Assessment form on 25 October 2018. This occurred prior to her commencing her employment at CSL. In essence, the issue CSL has with that answer is that if Ms Shegedyn intended to continue freelance photography whilst being employed at CSL, or complete pre-committed jobs, she should have raised this with her manager and noted the duration of employment as “continuous” in her Pre-Employment Health Assessment form.

[18] Having regard to this matter, I consider that the background to Ms Shegedyn completing the form is important. Ms Shegedyn did so after the interview at which she considers she had outlined the status of her business and the outstanding commitments to the satisfaction of Mr Andrew Marshall, Privigen Filling Coordinator at CSL.

[19] I accept the proposition that the central purpose behind a form used as part of a health assessment is the supply of information in relation to an applicant’s medical and employment history. Further, I consider it should be assumed that a proportion of applicants will be in existing employment at the time of making their application, such that the employment history will include the most recent/current employer. I do not, however, accept the proposition that it was the responsibility of Ms Shegedyn to cross out the “previous” in “previous employer” and write in its place, “current employer”. If CSL wanted a distinction to be made between the current employer of a job candidate, as opposed to his or her previous employer(s), this should have been made clearer on the form.

[20] Overall, I do not consider Ms Shegedyn acted unreasonably in the manner in which she completed the Pre-Employment Health Assessment form when it is evaluated together with her recollection of the discussion at her job interview.

Third allegation – Ms Shegedyn wilfully withheld information and provided misleading and, in some cases, false information in a workers’ compensation claim

[21] Ms Shegedyn’s answers to the following two questions in the workers’ compensation claim form was the third issue that gave rise to the warning:

“4. What sports, hobbies, activities have you undertaken outside of employment, both presently and in the past, including the frequency of your participation and the physical requirements involved?

…

6. Did you have any other employment at the time you were injured (including other full time, part time, casual or self-employed work). Please provide details of your other employment, including the nature of the employment, the frequently (sic) and where it is conducted?”

[22] CSL’s position is that Ms Shegedyn wilfully withheld information and provided misleading and false information when she answered these questions because she did not refer to the two photography shoots in either answer.

[23] As to Question 6, I do not consider that it was answered untruthfully by Ms Shegedyn. She had performed no photography work after 24 July 2019 and had cancelled the insurance for her photography business on 26 July 2019, both of which occurred before the alleged workplace injury in September 2019. Nor do I criticise Ms Shegedyn for not disclosing the two photography shoots as a hobby for the purposes of Question 4 because that would not have been an accurate characterisation of them or indeed any of her professional photography work, when one has regard to the particular wording of the question. Of course, had Ms Shegedyn adopted the course of action I have outlined at [16] above, the approach of both parties and their dialogue regarding these two questions may well have been different.

Was the warning fair?

[24] Ms Shegedyn, through the AMWU, submits that the context and circumstances of both CSL and herself must be taken into account. She rightly acknowledges that CSL, with over 1000 employees at its Broadmeadow’s plant, is entitled to expect high levels of probity and integrity and that its records and documents are to be kept accurately and honestly. Ms Shegedyn has also acknowledged that CSL is entitled to demand high standards of conduct from its employees at work and in work-related activities.

[25] Ultimately, however, I consider that what needs to be appreciated is that Ms Shegedyn had been self-employed for 20 years and was used to making her own judgement calls and decisions in relation to her work whereas CSL, her new employer, operates in a highly structured and regulated environment where process, standards and transparency are very important, and rightly so. The AMWU submit that there was a clash of cultures for Ms Shegedyn. Certainly in the infancy of their employment relationship, the two parties were not completely culturally aligned.

[26] I consider it important to recognise that Ms Shegedyn attempted to answer the questions in the various forms in accordance with their text. Further, when the matters were first raised with her, she was advised there were “serious concerns” involving her conduct and a “potential breach” of CSL’s Code of Responsible Business Practice, her Contract of Employment, CSL’s values and specifically “integrity”, with no further specifics. One can therefore imagine that if an experienced individual with over 20 years of running her own business, the success of which had depended on her reputation and professionalism, receives such advice out of the blue, she would have been quite taken aback. Bear in mind also that it was at 6pm on the evening she was to commence nightshift work after returning from Christmas holidays that Ms Shegedyn was first telephoned by Mr Tyson Parker, Manufacturing Area Manager at CSL, and advised:

a) that she was not to report for work that evening; and

b) that she would be receiving a letter about allegations that she had engaged in misconduct.

[27] Having regard to these matters, I consider it unremarkable that Ms Shegedyn was defensive in the first meeting and am not critical of the nature of the responses she gave at it.

[28] Further, I consider Ms Shegedyn’s conduct at the second meeting, at which she exhibited sincerity and remorse, made an apology for the misunderstanding and stated that it had never been her intention to mislead or withhold information from CSL, provides a more accurate reflection of her character and that this weighs in her favour.

[29] Nonetheless, I acknowledge that CSL operates in a strict regulatory environment and consider it was entirely reasonable and appropriate for CSL to take action to inform Ms Shegedyn of the standards that CSL requires of her (and all CSL employees) and to confirm this in writing. It was very important for there to be no residual doubt or ambiguity as to the rights and obligations of both CSL and Ms Shegedyn, and CSL was entitled to ensure its expectations and requirements were understood.

[30] In reaching my conclusion as to whether the warning given to Ms Shegedyn was fair, I have reviewed the evidence and submissions of the parties. As an overall observation, I found all witnesses to be credible, and while there were some minor discrepancies in some aspects of the evidence, these were not significant in my overall assessment of what has transpired. I have concluded that the parties simply held (and hold) different opinions about the way in which certain aspects of what occurred should be viewed and where one party has attached significance to a particular aspect of the factual matrix, the other has not viewed it in the same way. Ultimately, I consider both parties were sincere in their motivations and were doing their best to act and respond to the circumstances, as they arose, in an appropriate manner.

[31] Ultimately, I do not consider Ms Shegedyn completed any of the forms in an untruthful manner. Nor did she wilfully withhold information or provide misleading or false information. She answered the questions having regard to her circumstances and in accordance with their specific wording. As stated earlier however, while I am persuaded the parties may have got their wires crossed regarding Ms Shegedyn’s remaining work in her photography business, I consider the more prudent course of action for Ms Shegedyn would have been to reconfirm with CSL prior to performing the two photoshoots. My observation of Ms Shegedyn is that she accepts this. Additionally, Ms Shegedyn appears to accept that if confronted in the future with potentially ambiguous circumstances or wording, she should consult with management before acting so that any further misunderstandings can be avoided.

[32] My conclusion is that I do not consider it is a fair outcome that Ms Shegedyn has a written warning on her record that records her as having:

a) failed to act honestly;

b) wilfully withheld information; and

c) provided misleading and false information.

[33] Accordingly, I do not consider the warning was fair and consider the more appropriate outcome in the circumstances of this case would have been for Ms Shegedyn to have been issued with a “letter of counselling”. Given this conclusion and having regard to what the parties have submitted should be the ultimate result, my recommended outcome is as follows:

1) The Formal Written Warning dated 31 January 2020 issued to Ms Shegedyn should be removed from her CSL employment record.

2) A Memorandum signed and dated by both parties should be placed on Ms Shegedyn’s employment record, stating:

“Ms Shegedyn failed to disclose to CSL, in accordance with the CSL Code of Responsible Business Practice, her outside employment on 19 March 2019 and 24 July 2020 as a freelance photographer. While this outside employment was of short duration and appeared to present no conflict of interest, Ms Shegedyn acknowledges it would have been prudent and appropriate to notify CSL prior to undertaking that work and apologises for any misunderstanding.

In future, Ms Shegedyn will abide by all CSL policies and procedures, including CSL values and her contract of employment. Ms Shegedyn acknowledges that should she wish to engage in employment outside of CSL in the future (including freelance photography), she must consult with Mr Tyson Parker or her direct manager first and obtain approval.”

DEPUTY PRESIDENT

Appearances:

Mr B Terzic for the AMWU.
Mr W Fridell for CSL Limited.

Hearing details:

2020.
Melbourne (via Video on Microsoft Teams):
September 17.

Printed by authority of the Commonwealth Government Printer

<PR724479>