"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Harbour City Ferries Pty Ltd

[2014] FWC 8732

[2014] FWC 8732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Harbour City Ferries Pty Ltd
(C2014/649)

COMMISSIONER CAMBRIDGE SYDNEY, 4 DECEMBER 2014

Dispute settlement procedure - dispute regarding disciplinary procedure which culminated with a final warning issued to employee - jurisdictional challenge to application - whether obligation arising from terms of industrial instrument permitted intervention of Commission - jurisdictional challenge rejected - related unfair dismissal proceedings - inquiry and discipline process regarding conduct of employee in representative role - manifest errors of employer - invalid basis for warning.

[1] This matter involves an application made pursuant to section 739 of the Fair Work Act 2009 (the Act), for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The application was lodged at Sydney on 17 April 2014. The application was made by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)(the AMWU) and taken against Harbour City Ferries Pty Ltd (the employer or HCF).

[2] The application was based upon the Commission being empowered to deal with the matter by virtue of a DSP found at clause 12 of the Sydney Ferries Balmain Shipyard Enterprise Agreement 2012 - 2014 (the Agreement). The question in dispute involved a claim by the AMWU that an employee of HCF, Mr Christopher William Moutter (Moutter), who was also a delegate of the AMWU, had be subjected to a disciplinary process which was not conducted in accordance with the terms of clause 55 of the Agreement. Essentially, the AMWU challenged the validity of a final warning which had been issued to Moutter in a letter dated 7 April 2014.

[3] The matter was the subject of unsuccessful conciliation and the arbitration of the substantive matter in dispute and a jurisdictional challenge, has involved a Hearing conducted on 29 and 30 September 2014. It is relevant to note that this matter was connected with another matter which involved an application for unfair dismissal remedy (U2014/1288), and which was determined in a Decision [2014] FWC 8195 issued on 20 November 2014.

[4] The AMWU was represented by its Legal Officer, Mr J Lavelle Wilson who called Moutter as the only witness to provide evidence in support of the application. The employer was represented by Mr B Cross, a barrister, instructed by Ms A Grant, solicitor from Corrs Chambers Westgarth. Mr Cross called a total of three witnesses who provided evidence on behalf of the employer.

Background

[5] Much of the background which was recounted in the Decision in the related unfair dismissal matter (U2014/1288) is relevant to this matter. It is unnecessary to repeat the detail of the background which was included in the unfair dismissal Decision. In summary, the workplace in this case, the Balmain Shipyard, has an unfortunate history of fractious and acrimonious relationships between various workers.

[6] On 17 February 2014, an employee of HCF, Mr Michael John Kelly (Kelly) raised bullying and harassment complaints against another employee, Mr Timothy Redden (Redden). Kelly prepared a typed document dated 18 February 2014 1 which set out the basis for his complaint against Redden. The complaint made by Kelly primarily involved the alleged conduct of Redden on the preceding Friday, 14th February 2014, which included that Redden had performed the “chicken dance” at Kelly.

[7] Importantly, the documented complaint made by Kelly mentioned Moutter. Relevantly, the Kelly letter of complaint asked that HCF “...investigate my grievance lodged with Carl Groom our Ship Yard manager today, Tuesday 18th February 2014 at 10:00am...I have brought my grievance verbally to Tim’s delegate, Chris Moutter...”.

[8] The allegations made by Kelly against Redden were the subject of a telephone conference conducted on 21 February 2014, which involved Moutter participating as AMWU delegate and support person for Redden. This telephone conference was arranged by HCF management and involved HCF General Manager People and Culture, Mr Darrin Moy (Moy) and HCF Senior Manager of Assets, Mr Carl Groom (Groom).

[9] On 26 February 2014, Moy wrote to Moutter and inquired as to Kelly’s allegation that Moutter had witnessed the events of 14 February and any other unwelcome comments made by Redden to Kelly. In addition, and as mentioned in Kelly’s letter of complaint of 18 February, Moy also asked about Kelly’s allegation that Kelly had raised his grievance concerning Redden’s conduct with Moutter and he had not assisted Kelly. The letter of 26 February 2014 2 also stated: “We are also advised that you have been approached several times by Michael Kelly asking you for help to manage Tim Redden's behaviour.”

[10] Moutter responded to Moy in a letter dated 6 March 2014 3, which flatly denied that he had witnessed the alleged behaviour and or comments of Redden, as had been alleged by Kelly. Further, Moutter rejected the assertion that Kelly had requested that he help manage Redden's behaviour. Moutter stated, inter alia: “This is the first I have heard of any issue that Michael has with Tim.”

[11] Moy wrote again to Moutter on 20 March 2014 4. In this letter, Moy took issue with Moutter’s denials that he had witnessed any verbal attack or unwelcome comments made by Redden on Kelly. Further, Moy challenged Moutter’s assertion that Kelly had never approached him for assistance in “this matter.” Moy stated that Moutter’s position was “... completely at odds with what is alleged by Mr Kelly and would appear to be at odds with what other people have reported at the Balmain Shipyard...”.

[12] Moy also took issue with the assertion made by Moutter that the recent allegations raised by Kelly were the first that he had heard of any issue between the two men. Moy referred to an extensive investigation into allegations of workplace bullying and harassment which had been undertaken by the predecessor to HCF, Sydney Ferries, in 2009 and 2010 (the 2009 investigation). Moy stated that the 2009 investigation “...show[ed] that you were aware of issues between Mr Redden and Mr Kelly amongst other people.”

[13] Moy suggested that Moutter had potentially misled him and that arrangements would be made for a meeting to be held to discuss the prospect of disciplinary action, including termination of employment. Moutter responded in a letter dated 27 March 2014 5 which essentially restated his position, that he had not witnessed the behaviour of Redden as alleged by Kelly nor had he been approached by Kelly seeking assistance in respect of any issue relating to Redden, other than, the prospect of some contact which may have been made years before the allegations arose in respect of events of 14 February 2014.

[14] A meeting was held on 28 March 2014, which was attended by Moy and Groom for HCF and Moutter, now with his support person, Mr B Aitchinson (Aitchinson). During this meeting, Moy initially questioned Moutter about his assertion that Kelly had not sought his assistance regarding problems he was experiencing with the behaviour of Redden.

[15] Moy then asked Moutter if he had witnessed any of the behaviour of Redden, as was alleged by Kelly, to have occurred on 14 February 2014. Moutter was initially reluctant to answer questions regarding the allegations concerning the events of 14 February. The details of the allegations contained in Kelly's letter of complaint were read to Moutter who laughed at the suggestion of Redden performing the “chicken dance”. Moutter stated that he believed that the complaints made by Kelly were childish and that he had no recollection of the approaches that Kelly said he had made to him seeking assistance.

[16] On 2 April 2014, Moutter sent an e-mail 6 to Moy which again stated that Kelly had not approached him for assistance in relation to Redden's behaviour. Moy met again with Kelly on the following day, 3 April 2014, and Kelly maintained his allegations in particular, that in about February or May 2012 and mid-October 2013 he had approached Moutter for assistance and Moutter had rejected his approaches.

[17] In a letter dated 7 April 2014 7 Moy issued Moutter with a final warning. In summary, the warning letter stated that in respect to whether Kelly had sought assistance from Moutter, Moy believed Kelly and not Moutter. Further, the warning letter stated: “We feel that you have lied to us in your answers in these areas and in doing so have breached paragraph 7.1 of the Code of Conduct. As you know, paragraph 7.1 requires that: ‘Be honest and diligent in your work’.”

[18] The AMWU raised various issues with the content and conclusions reached in the final warning letter. Following some further review undertaken as part of attempted conciliation, HCF stated in a letter dated 5 June 2014 8 that it was not prepared to withdraw the warning letter issued to Moutter and dated 7 April 2014, and restated that the final warning remained valid.

The AMWU Case

[19] The submissions made by Mr Lavelle Wilson on behalf of the AMWU firstly addressed the jurisdictional challenge made by HCF. Mr Lavelle Wilson submitted that the jurisdictional objection raised by the employer should be rejected.

[20] The AMWU sought to rely upon the terms of clause 12 of the Agreement which reads as follows:

“12. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURE

Step 1
In the event of a dispute arising in relation to a workplace matter, in the first instance the parties will attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor and, if such discussions do not resolve the dispute, by discussions between the employee or employees concerned and more senior levels of management (including the Chief Executive Officer) as appropriate.

Step 2
A party to the dispute may appoint another person, organisation or association to accompany or represent them in relation to the dispute.

Step 3
If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to Fair Work Australia (FWA) for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary, FWA may exercise the procedural powers in relation to hearings, witness, evidence and submissions which are necessary to make the arbitration effective.

Step 4
It is a term of this agreement that while the dispute resolution procedure is being conducted work will continue without disruption unless an employee has a reasonable concern about an imminent risk to his or her health or safety.

The Chief Executive Officer and senior Union Official may agree to refer the matter to a third party to resolve the dispute by facilitation, mediation or conciliation where appropriate.”

[21] Mr Lavelle Wilson submitted that clause 12 of the Agreement empowered the Commission to arbitrate a dispute regarding a matter such as the issuing of a warning to an employee as had occurred in this instance. Further, it was submitted that clause 55 of the Agreement also provided jurisdictional foundation for the application. Clause 55 of the Agreement is in the following terms:

“55 WORKPLACE CONDUCT

55.1 General

The Parties are committed to dealing with the matters of inappropriate conduct and poor employment performances in a fair, equitable and responsible manner.

55.2 Code of Conduct

55.2.1 The SF Code of Conduct sets out acceptable conduct at work for its Employees.

55.2.2 The Parties agree that each Employee will comply with the SF Code of Conduct.

55.3 Equity and Diversity Policy: Harassment Prevention

55.3.1 The Parties are committed to ensuring a work environment free from harassment and a work environment which promotes the achievement of equality, access and eliminative of discrimination in employment.

55.3.2 The Parties agree that each Employee will comply with the Harassment and Prevention Policy. The Parties agree that each Employee will comply with the Equity and Diversity Policy.”

[22] The submissions made by the AMWU asserted that the dispute was about whether an employee had breached the Code of Conduct and whether the employer had met its obligations to handle the investigation into that matter fairly and in accordance with the requirements of clause 55 of the Agreement.

[23] Mr Lavelle Wilson referred to the approach to interpretation of the terms of Industrial Awards and Agreements established by authority such as that found in the case of Kucks v CSR 9. Mr Lavelle Wilson said that it was widely accepted that a narrow or pedantic approach to the interpretation of Industrial Awards and Agreements should be avoided.

[24] Mr Lavelle Wilson submitted that the terms of clause 55 of the Agreement, when considered in the context of enterprise bargaining negotiations in a workplace that had suffered from divisive bullying incidents during 2009 and 2010, established a commitment of the Parties to be bound by the Code of Conduct and that investigations into inappropriate behaviour would be conducted fairly. Mr Lavelle Wilson submitted that the terms of clause 55 were not some vague aspirational commitment but represented clear obligation and intention to establish a legally binding provision.

[25] Mr Lavelle Wilson submitted that the Commission had clear jurisdictional capacity to hear and determine the dispute which was the subject of the application in this instance.

[26] The submissions made on behalf of the AMWU then turned to the substantive matters in dispute. Mr Lavelle Wilson submitted that the dispute involved an employee, Moutter, being found to have breached the Code of Conduct and issued with a final warning in circumstances where such findings had been made without the employee being treated in a fair, equitable and responsible manner.

[27] Mr Lavelle Wilson submitted that the findings that had been made by Moy, that Moutter had been dishonest, arose from a disciplinary investigation which had involved inconsistencies and confusion. In particular, it was submitted that Moy took the view that Moutter had been dishonest because of his involvement in an earlier dispute. Mr Lavelle Wilson submitted that Moutter had not been asked to provide a history of his knowledge of any conflict between Kelly and Redden, but instead was questioned about the specific grievance that had been raised by Kelly after the alleged events of 14 February 2014. Consequently, according to the submissions of Mr Lavelle Wilson, Moy misunderstood the response provided by Moutter as it was confined to recent events and not some broader historical knowledge.

[28] Mr Lavelle Wilson further submitted that Moy had advanced a proposition that other people had felt that Kelly would have approached Moutter without any factual basis and that this contemplation contributed to an erroneous conclusion that Moutter had lied about approaches from Kelly.

[29] The submissions made by Mr Lavelle Wilson acknowledged that an employee had a duty of honesty to an employer. Mr Lavelle Wilson submitted that Moutter had not been dishonest with Moy, but rather, that Moy had made assumptions based upon the allegations made by Kelly without proper factual support. Further, Moutter had been understandably reluctant to become involved in the Kelly allegations, as a consequence of the difficulties he had experienced during the 2009 investigation.

[30] In conclusion, Mr Lavelle Wilson submitted that Moutter had not been dishonest in any of his responses to Moy, but instead, the investigation that had been conducted into allegations made by Kelly was dishonest and unfair. Consequently, according to the submissions made on behalf of the AMWU, the final warning given to Moutter was in all of the circumstances, not justified.

The Employer’s Case

[31] The submissions made by Mr Cross for the employer included an elaboration of material contained in written outlines made in respect to both the jurisdictional objection and the substantive matter.

[32] The employer’s submissions in respect to its jurisdictional objection asserted that sub-clause 55.1 of the Agreement was aspirational in nature and did not give rise to any enforceable obligations. The submissions made by the employer stressed the use of the words “are committed to” in sub-clause 55.1 of the Agreement, when considered in the context of the broader Agreement as a whole, should not be interpreted to have created a binding legal obligation.

[33] Further, the employer’s submissions in support of its jurisdictional objection stated that the dispute should be properly characterised as an objection to the employer preferring the evidence of the complainant, Kelly, over that of Moutter. Consequently, the dispute was not a matter that could be pursued through the grievance and dispute resolution procedure found in clause 12 of the Agreement. Mr Cross also submitted that the dispute was an attempt to resist the managerial prerogative of the employer and the Commission should have a very strong disinclination to interfere with or disrupt managerial prerogative.

[34] Mr Cross submitted that the dispute, when properly characterised, was not a matter which either clauses 12 or 55 of the Agreement provided jurisdictional basis for the Commission to make any determination. Consequently, according to the submissions made by Mr Cross, the Commission did not have jurisdiction to determine the application and it should be dismissed accordingly.

[35] Mr Cross made further submissions in respect of the substantive matter in dispute. Mr Cross said that the dispute involved significant issues of credit as between Kelly and Moutter. Mr Cross made extensive submissions which sought to support the evidence given by Kelly, who he said was a witness who gave clear and truthful evidence. Conversely, according to the submissions made by Mr Cross, the evidence given by Moutter was vague at times and cagey in nature and should generally not be believed.

[36] Mr Cross made submissions which were critical of various aspects of the evidence given by Moutter. In this regard, Mr Cross submitted that an adverse inference of the kind established in the case of Jones v Dunkel 10 should be drawn from the fact that no evidence was provided by Aitchinson who was Moutter’s support person at the meeting of 28 March. Mr Cross also submitted that Moutter provided evidence that he, Moutter, preferred to deal with any conflict that arose between employees without involving management. According to Mr Cross, this was a poor reflection upon Moutter who resisted the employer in its legitimate investigation of the allegations made by Kelly.

[37] Mr Cross summarised his submissions by asserting that the dispute in this case involved a complaint by the Union that the employer had preferred Kelly's evidence over that of Moutter. Mr Cross submitted that the Commission should accept the evidence of Kelly and reject that provided by Moutter. Further, Mr Cross said that it was a ludicrous suggestion to suggest that Moutter had not had a fair hearing. Mr Cross submitted that HCF was entirely correct in finding that Kelly had approached Moutter twice seeking help and that Moutter, in a very robust fashion, had refused to assist him.

[38] Mr Cross submitted that the Commission should not disturb the decision made by HCF to issue a final warning to Moutter as it was a soundly based decision and in any event, the matter was not something that the relevant clauses of the Agreement provided jurisdiction for the Commission to allow for any agitation by way of the application taken by the AMWU.

Consideration

The Jurisdictional Objection

[39] The jurisdictional objection raised by HCF has involved the question of the proper interpretation of the terms of clauses 12 and 55 of the Agreement, as they might apply to the subject matter of the dispute.

[40] The subject matter of the dispute can be conveniently summarised as a challenge to the employer issuing a final warning to an employee. Such a matter is a fairly common issue which regularly arises under the auspices of Dispute Settlement Procedure clauses contained in industrial instruments and which subsequently prompt applications made under section 739 of the Act.

[41] In this instance, the employer has asserted that the terms of 12 and 55 of the Agreement do not operate to provide jurisdictional basis for the dispute to be agitated by way of an application made under section 739 of the Act. Consequently, the particular provisions of these terms (clauses 12 and 55) need to be examined and properly interpreted.

[42] The approach to interpretation of industrial instruments is not a matter of strict statutory interpretation. Although the words in an industrial instrument may be given their plain literal meaning, it is well established that often it is appropriate to adopt a contextual and purposive approach broadly based upon authority established by a body of decision-making which is well summarised in a Decision of a Full Bench of Fair Work Australia in,Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd  11(Silcar).

[43] The interpretation of the terms of sub-clause 55.1 of the Agreement as asserted on behalf of the employer manifests one obvious difficulty. If the use of the words “are committed” render this sub-clause to be aspirational and without providing any binding legal obligation, then by logical implication, the employer is suggesting that it would deal with inappropriate conduct and poor employment performance in a manner which was not fair, equitable or responsible.

[44] In reality, the words “are committed” distract from the real intention of an industrial instrument provision such as sub-clause 55.1. Upon a practical and purposive interpretation of the terms of sub-clause 55.1, it should more accurately and appropriately be read as: “The Parties shall deal with matters of inappropriate conduct and poor employment performances in a fair, equitable and responsible manner.”

[45] Further, the provisions of clause 12 of the Agreement provide unambiguous jurisdiction for “a workplace matter” or “a matter arising under the agreement which is unable to be resolved” to be referred to the Commission. The prospect that the Parties to the Agreement would not have contemplated that a matter such as a contested final warning would not be capable of being referred to the Commission pursuant to clause 12 of the Agreement, cannot be realistically entertained.

[46] Consequently, the jurisdictional objection raised by the employer is rejected.

The Final Warning

[47] The dispute in this case has been connected with a protracted and a very unfortunate history of a fractious workplace environment. The related unfair dismissal proceedings (U2014/1288) have exposed some highly regrettable approaches to the investigation and determination of allegations made by Kelly and others. It is unnecessary to recount the details of the findings made in respect of the allegations made by Kelly, particularly as they relate to the events of 14 February 2014 and the alleged “chicken dance”. However, the matters which were traversed in the related unfair dismissal proceedings have been unavoidably relevant to the determination of the application in this matter.

[48] As was clearly identified by the submissions made on behalf of the employer, the final warning issued to Moutter was based upon the employer's clear preference for and adoption of the evidence and allegations of Kelly over the contradictory accounts provided by Moutter. Unfortunately, as was identified in the related unfair dismissal matter, the employer has adopted a biased and predisposed view to accept the allegations made by Kelly and reject any contrary propositions.

[49] Of particular significance is the finding that was made by Moy (which he unfortunately expressed as a feeling), that Moutter had lied to him and Groom about Kelly approaching him and seeking assistance in respect of the behaviour of Redden. Apart from the erroneous reliance upon the alleged reports of some undisclosed people at the Balmain Shipyard, Moy and Groom had conflated the question of any historical attempts by Kelly to engage Moutter in discussion about his complaints, with the prospect that Kelly had unsuccessfully attempted to raise his grievance verbally with Moutter after the events of 14 February 2014.

[50] When Moutter told Moy and Groom that the Kelly allegations which were raised following the events of 14 February, was the first that he had heard of there being an issue between Kelly and Redden, he was responding in the context of those allegations and not any historical background of disagreement between the two men. Moutter’s response was a firm rejection of any suggestion that Kelly had approached him for assistance in respect to his complaints arising from the events of 14 February. Unfortunately, Moy and Groom failed to properly distinguish between there being any approach by Kelly to Moutter in respect of the complaints arising from the events of 14 February, as opposed to approaches that Kelly may have made to Moutter circa May 2012 and October 2013.

[51] The lack of precision with the questioning and the testing of the responses provided by Moutter led to a startling manifest error of fact upon which HCF, in part at least, based its conclusion that Moutter had lied. It is instructive to examine the detailed evidence regarding the question of whether Kelly had approached Moutter and sought his assistance in respect to the complaints arising from the events of 14 February 2014.

[52] There was an understandable but very misleading inference which can be drawn from the antepenultimate paragraph of Kelly's letter of complaint which relevantly stated:

“I would like to ask Harbour City Ferries to investigate my grievance lodged with Carl Groom our Ship Yard manager today, Tuesday 18th February 2014 at 10:00am as I do not feel that I am currently working in a safe environment because I am worrying about what Tim is going to do next and in turn this is affecting my health. I have brought my grievance verbally to Tim’s delegate, Chris Moutter on the safety committee.”[emphasis added]

[53] The repeat of the words “my grievance” suggested that the complaints set out by Kelly in his letter of 18 February had been verbally brought to the attention of Moutter. This suggestion, in the absence of any testing or other inquiry, became fact in the mind of those HCF managers dealing with the investigation, as the following extract from the evidence provided by Groom confirmed:

“PN619
The document of 18 February sets out in some degree of detail the events that are alleged to have occurred on 14 February. Did you understand that Kelly had approached Mouter[sic] in respect of the events that were alleged to have occurred on 14 February?---Yes.

PN620
That’s what you thought had happened?---Yes.

PN621
In the letter that you’ve attached, this was the one that you were giving or tried to give to Mr Mouter[sic] I think on 28 February, so a little after this?---Yes.

PN622
In the third paragraph it says, “We’re also advised that you have been approached several times by Michael Kelly asking you for help to manage Tim Redden’s behaviour.” Is it your understanding that that behaviour relates to the events of 14 February?---Yes, in part and prior events as well.

PN623
What prior events were they?---The issues from the 2009 investigation. I understood there to be a pattern of behaviour which wasn’t resolved with the 2009 investigation and which continued and then escalated in to what we saw subject to this matter and the way that I understood it was that Michael had attempted to get resolution or mitigation through Chris Mouter[sic] as the representative, union representative, for Tim Redden’s union.

PN624
But you understood that he’d approached Mouter[sic] at some point between 14 and 18 February?---Yes.”

[54] When Kelly was questioned about this point of detail he provided the following evidence:

“PN920
Did you speak to Mr Mouter[sic] about Mr Redden’s behaviour of 14 February 2014?---No.”

[55] Consequently, as Kelly confirmed, and contrary to Groom's clear belief, the first that Moutter heard about the complaints raised by Kelly on 18 February was when he attended the telephone conference on 21 February as the support person for Redden. Despite the suggestion contained in the antepenultimate paragraph of his letter of complaint, Kelly had not raised the complaints regarding the alleged conduct of Redden on 14 February with Moutter at any time.

[56] The evidence which was provided by Moy confirmed that he and Groom had not properly examined and separated the question of any approach by Kelly to Moutter in the context of the allegations raised in the letter of complaint of 18 February, as compared to what Groom referred to as the “prior events” relating to the 2009 investigation. Relevantly, when on 3 April 2014, Moy made further inquiries of Kelly about the approaches that he had made to Moutter in the past, there was no interrogation of Kelly about any more recent approach connected with the complaints raised on 18 February. 12

[57] Further, Moy gave evidence during cross examination which reflected that he had conflated the responses given by Moutter with the prior events involving approaches made by Kelly to Moutter in 2012 and 2013. The following extract from transcript is provided as an example which demonstrates that the conclusions which were reached by HCF were anything but accurate:

“PN833
You didn’t ask him, did you, if there was any animosity between them?---I think it’s pretty clear. When it’s referring to a bullying investigation someone who is seeking assistance of Mr Mouter[sic] because he’s being bullied by someone he knows and to say that “this is the first I’ve ever heard of it” I think the conclusions that I reached were pretty accurate.”

[58] The evidence has clearly established that the first time that Moutter heard of the allegations which were made by Kelly on 18 March 2014, was when they were raised by HCF management during the telephone meeting held on 21 February. HCF management proceeded upon the erroneous belief that, as can be inferred from the antepenultimate paragraph of Kelly's letter of complaint, Kelly had raised the matters set out in that letter with Moutter.

Conclusion

[59] The determination of this dispute has firstly required the Commission to determine a jurisdictional objection raised by the respondent employer. The determination of that jurisdictional challenge has involved the interpretation of particular words contained in clauses 12 and 55 of the Agreement.

[60] In summary, my consideration has led me to conclude that the words contained in these clauses provide solid jurisdictional foundation for the Commission to determine a matter, such as a dispute regarding the employer issuing an employee a final written warning. Consequently, the jurisdictional objection advanced on behalf of HCF has been rejected.

[61] Secondly, the Commission has given further consideration to the substantive issues in dispute which involved the employer issuing a final written warning to its employee, Moutter. Following a detailed analysis of the evidence, it has been established that the warning was based upon erroneous findings of fact which were embraced by HCF as a result of its unseemly haste to accept the allegations made by Kelly and reject any contrary position.

[62] In view of the conclusions that the Commission has reached, the written warning issued by HCF to Moutter in the letter dated 7 April 2014, is invalid, and it should be withdrawn. The assertion made in the letter of warning that Moutter had lied to HCF management is a hurtful falsehood, for which Moutter is entitled to receive an apology.

[63] The application is determined accordingly and the proceedings are concluded.

COMMISSIONER

Appearances:

Mr J Lavelle Wilson appeared on behalf of the AMWU;

Mr B Cross, counsel, together with Ms A Grant, solicitor from Corrs Chambers Westgarth, appeared for the employer.

Hearing details:

2014.

Sydney:

September, 29, 30.

 1   Exhibit 4, Annexure “DM7”.

 2   Exhibit 4, Annexure “DM9”.

 3   Exhibit 4, Annexure “DM10”.

 4   Exhibit 4, Annexure “DM11”.

 5   Exhibit 4, Annexure “DM12”.

 6   Exhibit 4, Annexure “DM13”.

 7   Exhibit 4, Annexure “DM14”.

 8   Exhibit 4, Annexure “DM18”.

 9 Kucks v CSR Limited [1996] IRCA 166 (19 April 1996), 66IR182.

 10 Jones v Dunkel (1959) 101 CLR 298.

 11   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Silcar Pty Ltd [2011] FWAFB2555.

 12   Exhibit 4, paragraph 31.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR558578>