Ball and AMWU v Cadbury Schweppes Australian Pty Ltd
[1997] IRCA 283
•31 October 1997
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - misconduct - two incidents of referring to a female employee as a “bimbo” - offensive language - swearing over a two way radio - warning issued in respect of first incident - first incident admitted - second incident denied - earlier, more serious incident of sexual harassment against a client (not an employee) also admitted - the second incident denied by the applicant but found to have occurred - investigation of second incident - suspension of applicant during investigation - written report of investigation - applicant and his union representative provided with an opportunity to comment on the first and second incidents and on the earlier, more serious incident - recommendations in report of investigation severable and admitted as evidence - the report of the investigation not admitted - valid reason for termination.
Gibson v Bosmac Pty Ltd (1995) 60 IR 1
Wadey v YMCA Canberra (unreported, IRCA, Moore J, 12 November 1996)
Selvachandran v Peteron Plastics (1995) 62 IR 371
Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; 43 IR 210
Geros v Mitcham Automatics Vic Pty Ltd (1995) 64 IR 206
ADRIAN JOHN BALL & AMWU v CADBURY SCHWEPPES AUSTRALIA PTY LTD
VI-2726 of 1996
Judicial Registrar Ryan
Melbourne
31 October 1997
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2726 OF 1996
BETWEEN:
ADRIAN JOHN BALL & AMW
APPLICANTAND:
CADBURY SCHWEPPES AUSTRALIA PTY LTD
RESPONDENTJUDICIAL REGISTRAR:
RYAN
DATE OF ORDER:
31 OCTOBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS:
That the application be dismissed.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2726 OF 1996
BETWEEN:
ADRIAN JOHN BALL & AMW
APPLICANTAND:
CADBURY SCHWEPPES AUSTRALIA PTY LTD
RESPONDENT
JUDICIAL REGISTRAR:
RYAN
DATE:
31 OCTOBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
TERMINATION OF EMPLOYMENT
On 14 November 1996, after an investigation which began on 11 November, the respondent terminated the employment of the applicant on the grounds of misconduct.
CLAIM OF UNLAWFUL TERMINATION
The applicant claims that the termination of his employment by the respondent was unlawful and he seeks reinstatement. The respondent asserts that the termination was for valid reason and was not in breach of Part VIA of Division 3 of the Workplace Relations Act 1996.
THE EMPLOYMENT
The applicant worked for the respondent for twenty years. At the time of termination of employment he was a leading hand in the post mix division. The post mix division instals and maintains vending machines which provide a range of carbonated and mixed drinks. The division also supplies, instals and maintains other equipment used in the provision of carbonated and mixed drinks.
ALLEGATIONS OF MISCONDUCT
In his application for relief in respect of termination of employment the applicant described the reason given for termination as “unacceptable behaviour with a fellow employee”.
In a Notice of Employer’s Appearance the respondent’s Human Resources Manager, Mr Paul Simmons, summarised the reasons given for termination as “misconduct and the use of objectionable or obscene language”.
The respondent appears to have terminated the employment of the applicant as a result of an incident which the respondent concluded had occurred on 28 October 1996. The decision to terminate employment took into account that the applicant had been the subject of a written warning on the 14th April 1994 in respect of a complaint of sexual harassment on 30 March 1994. The respondent had found the complaint (confirmed in writing by the complainant on 6 April), to have been made out and on 14 April 1994 had transferred the applicant from external maintenance work to the workshop and had withdrawn his leading hand allowance and his access to a service van. The transfer to the workshop applied for twelve months.
The decision to terminate the employment of the applicant also took account of an incident on 25 June 1996. The service manager in the post mix division, Colin Hoffman, warned the applicant in respect of the incident on that day.
The incidents on 28 October 1996 and 25 June 1996 were reported as being somewhat similar in that both are alleged to have involved the applicant referring to a radio administrative clerk, Kim Lesley Judnic, as a “bimbo” and both incidents are alleged to have involved (and/or referred to) the use by the applicant of offensive language.
Ms Judnic and Mr Simmons gave evidence of these incidents. Mr Simmons stated that the applicant admitted his involvement in the first incident on the 25th June but denied any involvement in the alleged incident on 28 October.
Ms Judnic deposed that
the applicant had called her a bimbo over the two-way radio on 25 June and had also sworn on that occasion on the radio at or in respect of another serviceman
she immediately told Mr Colin Hoffman, the service manager, and Mr Hoffman indicated to her that he had heard the swearing on the radio
on 28 October 1996, in a telephone conversation at about 4.15 pm, she had given the applicant the details of a service call and he had said “who was the contact?” She replied: “her name was Kim” and he responded, “oh, she’s probably just another bimbo”
in evidence in chief Ms Judnic was asked what was her reaction to the comment and she replied, “well, in the tone that it was used, it felt like it was directed at me and I did go and tell Colin (Hoffman). I told him as soon as it happened. I just told him what he (the applicant) had said and then he (Hoffman) went and he came back and said that if I wanted to complain I would have to put the complaint in writing and forward it to Mike Williams”
A letter of complaint to Mr Williams, the national post mix manager, was tendered as Exhibit R2. It is dated 6 November 1996 and reads as follows:
“6/11/96
Mike,
As on one other occasion Adrian Ball had called me a bimbo on the 2-way radio as to everyone hearing. Colin was told and he was spoken to.
On the 28/10/96 I received a service call from Yarra Bend Golf Club and the contact Kim. I had given him the service call over the phone, when I gave him the contact person the remark was made that she’s just another bimbo because her name was Kim. The word bimbo to me is very offending.
Part of my job is to receive service calls and give them out to the servicemen. One Friday Adrian had a couple of jobs. In the afternoon I got busy, 4 jobs had come in for him. I did my job and gave him the service calls. Once I had given him the calls he said to me, he was having a good day and now you have justed f-------- it up, and he was very serious the way it was said.
Everytime I give him jobs all he does is complain that he has too many and the way the map is set out that it’s not working, the book system doesn’t work and so on.
I’m here to do my job but Adrian makes my job so difficult and making me so unhappy.
Kim Judnic”
Mr Williams was not called as a witness but on Friday 8 November 1996 he appears to have advised the employee relations manager of the Schweppes Cottees Division, Mr David Johnston, of the written complaint. The evidence of Mr Simmons, the human resources manager for the Schweppes Cottees Division, suggests that Mr Johnston probably saw the written complaint. In any event, Mr Johnston forwarded a confidential memo to Mr Williams. Mr Simmons gave evidence that he received the written complaint of 6 November (Exhibit R2) and the memo from Mr Johnston of 11 November (Exhibit R7) on 11 November. The memo is written by Mr Johnston in his capacity as employee relations manager, Schweppes Cottees Division. It is addressed to Mr Williams, the national post mix manager. The memo indicates that copies went to Mr Simmons as human resources manager, Schweppes Cottees Division and to two senior company officers, the director of operations, Mr Henry, and the personnel director, Mr Loveless.
Messrs Williams, Henry, Loveless and Johnston did not give evidence. However, counsel for the applicant did not object to the admission of the memorandum. Indeed, she sought to rely on it as evidence that the decision to terminate the applicant had really been made by 11 November .
The memorandum reads as follows:
“MEMORANDUM
CONFIDENTIAL
TO: MIKE WILLIAMS
c.c: DARYL HENRY, DOUG LOVELESS, PAUL SIMMONS
FROM: DAVID JOHNSTON
DATE: 11 NOVEMBER 1996
SUBJECT: SEXUAL HARASSMENT CLAIM
===============================================================
Thank you for advising me of this matter late on Friday.
This is a serious allegation and regrettably it is the second time Adrian Ball has been involved in a matter of this nature.
My strong recommendation is as follows:
Adrian Ball needs to be contacted immediately (if he is on the road, get him to come in immediately for a discussion, the nature of which should not be divulged over the airwaves).
Adrian needs to be informed of the allegations made against him and suspended on pay until a full investigation can be undertaken. He should be informed that he will be given every opportunity to respond to the allegations.
Kim Judvic needs also to be informed that we will undertake a full investigation and she should refrain from discussion with anyone other than Paul Simmons.
Adrian Ball and Kim Judvic need to put their arguments freely but at no stage should they be brought together. Adrian is not to resume normal work whilst the investigation is taking place.
If, after Adrian has had a chance to respond to the allegations, there is sufficient evidence or if, on balance, it seems highly likely Adrian has indeed made the comments as alleged, then he should be dismissed forthwith.
I suggest the investigating committee should consist of Paul Simmons and Colin Hoffman. Kim Judvic and Adrian Ball should have a witness or a representative with them during this process.
Please let me know of your progress.
Regards,
DAVID JOHNSTON”
THE INVESTIGATION
Messrs Simmons and Hoffman, Ms Judnic and Mr Ball all gave evidence. Their evidence included their involvement in the investigation which Mr Johnston had recommended to Mr Williams.
MR HOFFMAN AND THE INVESTIGATION
Mr Hoffman’s role in the investigation was minor and he stated that he was not involved in the termination of the applicant’s employment or with the decision to terminate the employment. He admits that he was “in and out of the office between Monday 4 November and Friday 8 November” (T57) but was on a training course for four days from Monday 11 November to and including Thursday 14 November (T56).
He gave evidence that he did not see the written complaint from Ms Judnic and “did not know until after Mr Ball was terminated as to when the written complaint was actually made” (T57).
In evidence in chief, the following exchange took place (T44):
Mr Parry:Did you see the written complaint yourself?
Mr Hoffman: No, I did not.
Mr Parry:And after that, what contact did you have with other company personnel regarding this particular incident?
Mr Hoffman: Well, after that I actually went on to a training course, so I really never had a lot of contact with any of the other people within the service station.
Mr Parry: Did you have a discussion with Mr Simmons about this matter?
Mr Hoffman: No, I never had a discussion with Paul Simmons about this matter, as I said. This matter was handled by Mike Williams - not that I recall mentioning it to Mike - to Paul Simmons, no, but ---
Mr Parry: Were you involved in the dismissal of Mr Ball?
Mr Hoffman: No, I were not.
Mr Parry: Were you involved in the decision to dismiss?
Mr Hoffman: No, I were not.
Mr Parry: When did you find out about the dismissal?
Mr Hoffman: Whilst I were on the training course.
In cross-examination, Mr Hoffman changed his position in the following exchange (T58):
Ms O’Brien:So you said this morning that you were not involved in the discussions with Paul Simmons about this matter, did you not?
Mr Hoffman: I said this morning that I had nothing to do with the termination, right.
Ms O’Brien:No, you did not, sir. You said, “I didn’t have a discussion with Paul Simmons about this matter. I was not involved in the decision or the discussions. I found out while I was on the training course.” So what I am asking is this - that you did have a discussion with Paul Simmons about the matter prior to Mr Ball’s termination, did you not?
Mr Hoffman: I am just trying to think back, sorry. Actually you are correct, yes. I just remembered that I did actually get a phone call from Paul Simmons whilst I were on the training course and he asked me what had happened, I told him and it was left at that.
Ms O’Brien:Did you find that out over lunch, did you?
Mr Hoffman: No, no, I did not. I did not talk to Paul Simmons over lunch. I have not discussed anything regarding the case over lunch.
MR SIMMONS AND THE INVESTIGATION
Mr Simmons undertook the investigation recommended by Mr Johnston. His evidence includes the following (T78-81):
“I first became aware of that complaint on Monday 11 November. The complaint was actually formally transmitted to Mike Williams who is the National Post Mix Supervisor on the 6 November. I was on leave at that time. Upon my return from leave on the Monday (11 November) I became aware of the accusation that had been made.
I saw Exhibit R2, the written complaint, from Ms Judnic on 11 November plus a further document from our Divisional Employee Relations Manager which detailed this complaint (at this stage the witness identified Exhibit R7).
The steps I took were to contact Mr Ball and ask him to come in so that I could have a talk to him. I also spoke with Ms Judnic who had made the complaint.
I spoke to Ms Judnic first. I can’t recall anyone else being present. The only person who may well have been present would have been John Williams who was acting in the role of post mix service manager while Colin Hoffman, the substantive post mix service manager, was on a training course. The meeting probably went for around about thirty minutes and I asked Kim to expand a little bit on the statement that she had made so that I could have a clearer understanding of what had actually taken place and to get as much detail as I could. She confirmed the details as contained in the complaint. She also stated that there had been previously incidents, most recently in June of that year in 1996 and that at that time she had taken it up with her manager, Mr Colin Hoffman and that he had then spoken to Mr Ball about the fact that those sort of comments were not going to be tolerated.
A part of her complaint dealing with language was discussed. She elaborated on that and said that the comments were made in relation not only to herself but also to other post mix people. One of those was Mr Stan Berias who is a post mix service person and that other people had heard those comments over the two-way radio.
I explained to Ms Judnic that we would be speaking to other people involved and that would include Mr Berias and that we would also be speaking to Mr Ball and that we would make a decision on the matter as speedily as we could.
I believe I spoke to Mr Ball in my office on Monday 11 November. To the best of my knowledge it was myself and Adrian and I am not sure if there was anybody else there to be quite honest. I informed him that there had been a complaint made. I informed him of the details, the nature of that complaint and informed him that we were going to conduct a full investigation of that complaint and that he would have the opportunity of speaking in his defence with a witness present of his choosing and, in the interim, we were proceeding to suspend him on full pay until that investigation had been carried out.
To the best of my knowledge he was not provided with a copy of the written complaint (Exhibit R2) but he was referred to its contents. To be quite honest I can’t recall what was his response. The conversation was relatively brief and the complaint was outlined to him but I made the point that we were conducting an investigation and that there would be a meeting and that he would have the opportunity of speaking in greater detail about the complaint.
I conducted further interviews with both Stan Berias and Mr Arthur Hampson who is another post mix service person. (Evidence of the content of these discussions was not permitted given that neither Mr Berias nor Mr Hampson was called as a witness).
I spoke to Mr Hoffman on the phone. He actually was in for a brief period of time and I had the opportunity at that time to get his recollection of the events. He confirmed that he had had occasion to speak to Mr Ball following the incident on or around about 25 June when Mr Ball was alleged to have called Ms Judnic a bimbo. He spoke to Mr Ball. The details of that meeting he had with Mr Ball he put in his diary and Mr Ball accepted that he had made the statement and it was unacceptable. Mr Hoffman was in my office that day. He had dropped in after the end of his training course. It probably would have been the 13th (i.e. Wednesday 13 November).”
In cross-examination, Mr Simmons gave more detail of his discussion with the applicant on 11 November as follows (T83):
“We also covered the background to what had happened some time previously in relation to a previous warning in 1994 and also the incident in June of 1996 where he was alleged to have called Ms Judnic a bimbo and he accepted that that comment was made. He accepted that Mr Hoffman had spoken to him at that time and had told him that he was not to use that type of language, the use of the word or term ‘bimbo’, the use of language which is swear words and things like that. He denied that that comment had been made. He suggested that her work performance was not very good and he suggested that any comments that he made towards her were as a result of frustration with her work performance. I believe he may well have asked what was going to happen from thereon in and that is when I advised him that he would be suspended on full pay and that we would be carrying out an investigation and he would be given every opportunity to make his case.”
MS JUDNIC AND THE INVESTIGATION
Ms Judnic’s evidence as to her discussion with Mr Simmons on 11 November included the following (T10-13):
“Paul called me to the office after I had submitted the letter (Exhibit R2). I think it was about a week or so later. He went through it and asked me what had happened and I told him. I was talking to Mr Simmons for half an hour to forty-five minutes.”
THE APPLICANT AND THE INVESTIGATION
The applicant’s evidence of his meeting with Mr Simmons on 11 November includes the following (T34-36):
“On 11 November 1996 I was asked to come into the office by Paul Simmons. I said “Paul, you and I don’t talk unless there is a problem. Is there a problem?” He declined to give me any information. I went in and he said they had received a complaint from Kim Judnic.
He said, “you had called her a bimbo”.
I said, “yes, that’s correct, I did, but it was several months ago”.
He said that she had alleged that I had repeated it again later in the year on 28 October and I denied it.
He said that there were other matters as well and that I had sworn at Kim on the radio and I denied that. I said, “I’ve only ever sworn on the radio once and that was to Stan Berias”.
I said that Colin Hoffman had rung me on the phone and said “that was a silly thing for you to do, especially with your record”.
I said, “yes, you’re right, I’ll apologise to her tomorrow”. I did that and she accepted.
Mr Simmons said that he would have to investigate the matter further and until that took place he would suspend me from duty. I specifically asked him to speak to a certain person and he said he would and he said he would investigate the matter thoroughly. I asked him to speak to Nick Sattanni.
I was taken outside, put in a taxi and sent home.”
A little later in his evidence (T37) the applicant said:
“At the first meeting on 11 November I told Mr Simmons that I thought she (Ms Judnic) was an inferior employee, wasn’t suitable for the job, that on many occasions I had spoken to her about the way she did the job and I raised an issue where she smokes in the office continually because she is not under supervision. She can get away with it. I caught her smoking one day and said that she would get into trouble and she told me to get stuffed.”
Later again (T46) counsel for the applicant asked him what he had said about using bad language when he met Mr Simmons on 11 November. The applicant replied, “I admitted that there had been one occasion. He said it was in relation to Kim. I denied that. I said it was Stan Berias. I said he could confirm that with Stan, that I’d done it once and that it was just said in the heat of the moment.”
In cross-examination, in respect of the meeting with Mr Simmons on 11 November the following exchange took place (T84-87):
Mr Parry:Mr Simmons said to you that there was a complaint by Ms Judnic about you calling her a bimbo?
Applicant: That’s correct.
Mr Parry: And you instantly denied that, did you not?
Applicant: No, I said I’d done that but it was earlier in the year.
Mr Parry:When it was made clear to you that it was a more recent incident you instantly denied it, did you not?
Applicant:That’s correct, yes.
Mr Parry:Mr Ball, it was said to you that you had done it again in effect?
Applicant:No, we had a discussion about the first instance for a short time. I said, “No, that was earlier in the year. Surely you’re not going to prosecute me for something so long ago?” Well, not prosecute, I tell a lie, “We’re not going to discuss it,” or something, I can’t remember the exact words but something, I discussed that incident because it was quite a while ago and he said, “No, there’s a more recent incident,” and then he named the date which meant nothing to me at that time.
Mr Parry:The day meant nothing to you? You say it was raised with you but you did not ask any other questions about the call or the context or anything else about these allegations?
Applicant:Because I have not used the word in relation to Ms Judnic since June.
Mr Parry:You knew it was pretty important to you at that stage to deny it, did you not?
Applicant:Of course anyone would, yes.
Mr Parry:If this allegation was true that on 28 October 1996 you had called Ms Judnic a bimbo, if that was true, you knew on 11 November 1996 that that may well lead to the termination of your employment?
Applicant:It never crossed my mind because I knew I hadn’t said it so I told the truth.
Mr Parry:You knew that it would have been - if true - a matter most seriously viewed by the company?
Applicant:Well, commonsense would tell anyone that, yes.
Mr Parry:So, you see, I suggest to you that on that day you simply lied?
Applicant:I did not.
Mr Parry:Did you say or did it cross your mind at that time that you might have said it?
Applicant:No, sir.
Mr Parry:I put it to you that on that day, on 11 November 1996, you chose denial because you thought it would protect your employment position?
Applicant:I denied the question, sir, because it was incorrect, I didn’t say it.
Mr Parry:On that day whilst you denied the matter you also made comments regarding Ms Judnic’s performance, did you not?
Applicant:That’s correct.
Mr Parry:You said you got angry with Ms Judnic from time to time?
Applicant:Frustrated I think I said.
Mr Parry:Might you have said angry as well?
Applicant:Possible, yes.
Mr Parry:And you believed her performance to be less than satisfactory?
Applicant:That’s correct, yes.
MR SIMMONS RECOMMENDS TERMINATION 13 NOVEMBER 1996
On 13 November Mr Simmons prepared a report and described it thus (T82):
“I detailed a reasonably lengthy memo giving a chronological account of what had transpired over the period of time from first becoming aware of the complaint until after I had spoken to each of the people previously referred to, and referred that to appropriate people at St Kilda Road head office.”
Mr Parry conceded that the report contained comments on discussions with Messrs Berias and Hampson. Ms O’Brien objected vigorously to the admission of the report given that the respondent had conceded that Berias and Hampson were not to be called to give evidence. Ms O’Brien described the report as “full of material which is not being called and...is highly prejudicial, without being probative and not...subject to cross-examination”. (T84).
Mr Parry sought admission of the whole document pointing out that the respondent did not rely on the truth of any statements, conclusions or opinions attributed therein to Mr Berias or Mr Hampson.
The recommendations in the report were clearly severable from the report as a whole. Ms O’Brien did not object to the admission of that part of the fourth and final page which contained the recommendation of Mr Simmons. That is the only part of the report which I was prepared to admit. It is Exhibit R8 and reads as follows:
“RECOMMENDATION
Whilst the complaint against Adrian cannot be corroborated in every detail, this is not unusual in cases of this nature. Indeed, sexual harassment, of its very nature, is usually done outside the view of interested observers.
The absence of corroboration has not deterred Equal Opportunity Tribunals from deciding in favour of the complainant (refer Adams Vs Helios Electroheat Pty Ltd & David Baker, NSW EOT No. 55 of 1995 25.09.96).
Ordinarily the circumstances and the nature of the complaint in question would probably ordinarily warrant no more than a final warning and/or apology.
However, given the repeated nature of the incidents and the fact that Adrian has already been severely reprimanded for a previous incident, I see no other option available other than termination of employment.
Further, it is worthwhile bearing in mind that objectionable or obscene language is grounds for summary dismissal under our policy on summary dismissal.
In this instance, the use of such language over the airwaves would also be an offence under Federal law.
Accordingly, in view of all the above, termination of employment is the only viable option.
If we all accept this view, then Adrian needs to be invited back for a discussion and informed of the allegations made against him, invited to have a witness present and encouraged to put his defence. Unless he can offer powerful reasons militating against termination of employment he should be summarily dismissed.
Of course, such action is not free of the risk of either industrial action or a claim for unfair dismissal. The latter we can defend with probably a 50:50 chance of success. The former should not influence us if we believe we are correct in our actions.
In any event, we need to be agreed on our next course of action.
Paul Simmons
13/11/96”
THE REDBACK BREWERY INCIDENT
Mr Simmons confirmed that the “previous incident” for which the applicant had “been severely reprimanded” was an incident in March 1994. Mr Simmons described the incident as follows (T87):
“There is the incident in March of 1994 when at the Redback Hotel he made a comment to the manageress there that she looked more attractive - or something along those lines - than when he’d previously seen her, and when she said, “I haven’t seen you before”, he made the comment that, “Yes, I did, I saw you two weeks ago in the massage parlour.” She took great exception to that. There were witnesses present at the time who similarly heard the comment made. She made a formal complaint to the company, a written complaint was lodged with the company, the company investigated it quite thoroughly. As a result of that investigation certain disciplinary action was taken against Mr Ball, including the fact that he had a warning put on his card, including the fact that he lost his leading hand allowance, that he was restricted to workshop duties for the period of 12 months.”
Counsel for the applicant stated at T88:
“It is conceded that the evidence that this witness (i.e. Simmons) has given about the incident - that is conceded. The warning that my learned friend has handed to this witness is also conceded. There is no argument about any of that. I thought that might assist.”
Counsel is referring to a warning dated 31 March 1994 (Exhibit R10). The warning was signed by the applicant and bears the signatures of four other people described therein as supervisor, shop steward, personnel manager and department head. The signature of the department head is identified as affixed to the document on 14 April 1994. The warning reads as follows:
“CADBURY SCHWEPPES PTY LTD
WRITTEN WARNING
TULLAMARINE AWARD EMPLOYEES
DATE: 31ST MARCH 1994 DEPARTMENT: POSTMIX
NAME: BALL ADRIAN CLOCK NO: 00546
(Surname) (Other)
_______________________________________________________________________
REASON FOR WARNING:
We have had a complaint from the Manageress of the Redback Brewery Hotel, and on a service call of the 30.03.94 your comments to her had sexual overtone. The Manageress felt so concerned in regards to your comments that she has requested that you not enter the hotel in future. Your comments were overheard by a barmaid and also a customer at the time. The Manageress felt they were totally inappropriate not only to her, but also very offensive to the other people who heard the comments. Such comments are totally unacceptable to the Company.
COMPANY POLICY/PROCEDURE:
Cadbury Schweppes has a strict policy in regards to sexual harassment, and comments that contain innuendos, whether they take place within the office or in the field. Under no circumstances will any such actions be tolerated in any particular form. Breaches of the company policy will be dealt with without fail. Your actions were contrary to the Company’s customer relations policy and practices.
FUTURE REVIEW/ACTION:
Your work performance will continue to be reviewed and any further reports of any nature will be taken most seriously and further disciplinary action will be taken by the company without hesitation.
NOTE:Mr Ball is to be transferred to the workshop and his leading hand allowance will be withdrawn together with his service van.”
The complainant lodged a written complaint with the respondent dated 6 April 1994 (Exhibit R9).
The hotel is operated by a company which manages a chain of hotels in Victoria and elsewhere. The general manager wrote to Mr Peter Winter, Manager - Post Mix Division, on 7 April 1994 (Exhibit R11) and stated:
“Further to a complaint from our Assistant Manager at the Redback Hotel, Ms Kate Coldbeck, it seems that one of your service employees has made comments of a sexual discriminatory and harassing nature. We are an equal opportunity employer and have a very strict code of conduct with respect to sexual discrimination. This incidence has caused our Assistant Manager concern to the point where she has stated that she did not wish your serviceman to call on the hotel again.
We do not seek to make an issue of this incident, but suggest that it may be in our mutual interests for you to ensure that the serviceman involved does not call on any of our hotels.
Yours faithfully,
ANDREW GRIFFITHS
GENERAL MANAGER”
On 27 March 1995 Mr Simmons by internal memorandum (Exhibit R12)
referred the applicant to the written warning on 31 March 1994 “regarding comments... made to the Manageress of the Redback Brewery Hotel”
confirmed that “pursuant to that warning (the applicant was) transferred to the workshop (with) leading hand allowance...withdrawn together with...service van and (restriction) to on-site activities”
noted an agreement that “penalties would be reviewed in twelve months”
advised the applicant that he would be “reinstated to (the) previous position of leading hand as and from 7 April 1995”
described the applicant’s “use of a service van for off site work (as) subject to operational consideration and (to be) determined by the post mix manager, Mr Peter Jamison”
The memo of 27 March 1995 concluded as follows:
“You need to be aware that the company takes a very dim view of sexual innuendo and/or harassment and any further instances and/or complaints will result in summary termination of employment.”
THE TERMINATION 14 NOVEMBER 1996
Early in the afternoon of Thursday 14 November the applicant attended a meeting with Mr Simmons and Mr Michael Williams. Mr Michael Rattigan of the Amalgamated Metal Workers Union attended with the applicant. Mr Rattigan stated in evidence that he had been an official with the union for ten years.
Mr Simmons, Mr Rattigan and the applicant gave evidence of this termination of employment meeting but I must say the task of the Court would probably have been easier if Mr Williams had also given evidence. He was the National Post Mix Manager. Mr Johnston had written to him recommending the investigation of the complaint of 28 October and Mr Williams was the senior company representative at the termination meeting. He had required Ms Judnic to put her complaint in writing and the complaint was addressed to him. Be that as it may, the Court must take the evidence as it finds it and determine the matter on the basis of the evidence.
Mr Simmons stated that when the meeting began he
outlined the complaint “which had been faxed to Mike Williams on 6 November” (T10)
went over again the matters he had raised with the applicant on 11 November
confirmed that investigations had been conducted and that the applicant was being given an opportunity to answer the allegations.
His evidence continued as follows (T10-T12):
“In the course of my opening comments I outlined to him what we had ascertained by way of further interviews with other people including Mr Hoffman, Mr Berias and Mr Hampson. I also went through the history on his file over the last few years starting with the warning that was placed on his card in March 1994 and also then getting to the most recent events.
I stated that we believed that the statements made were correct and I then invited Mr Ball to make any comments or any questions or any queries that he might have at that time.
Mr Rattigan spoke and said that he had some concerns. One was that he felt that Ms Judnic has been pressured into making the complaint. Secondly, he felt that there was another issue that had been a motivating factor in the company making its decision.
I believe I made the comment that I did not believe that Ms Judnic had been pressured into making the complaint. In the discussions I’d had with Ms Judnic she had never intimated or made any statement that indicated that she felt pressured into making the complaint. In discussions I had had with Mr Hoffman, similarly, he did not indicate that there was any pressure put on her to make the complaint.
Mr Rattigan suggested that there were two or three people who would be able to substantiate that pressure had been put on and he mentioned three names. He mentioned Angel Gabales, Stan Berias and Nick Sattanni.
My response was that I did not believe that she had been pressured into it.
The other matter was discussed and that was in relation to a suggestion by Mr Rattigan that this other issue was the real reason why the company was talking to Mr Ball at this stage. It came out that the complaint made by Mr Gabales, and it actually went to Mr Mike Williams, was that Mr Gabales felt that he had been shifted out of his designated area, which was the central business district, and certain other changes had been made which he initially felt were racially based because Mr Gabales was of Phillipino extraction. That had been investigated and we did not believe that was the case. I formally spoke to Mr Gabales later in November, on I believe 20 November, and went through exactly each of his complaints and clarified each of them. As I said to him at the time, the company reserved the right to shift people into different areas, and we were trying to shift people into different areas to get a degree of flexibility. He had some concerns about the way the preventative maintenance program was being done. At that meeting I also said to him if he had any concerns than obviously he should take that up with his post mix manager, but obviously it was the post mix manager’s final call as to the best way to do the preventative maintenance program. I also made it clear to him that I did not believe there was any basis to his racial claims.”
At this stage, the Court observes that during the hearing there was detailed reference to an allegation that the termination of the applicant and indeed the investigation of the complaint of Ms Judnic was, in some way, the result of a vindictive reaction to the alleged support by the applicant of a claim of racial discrimination made by Mr Gabales.
I do not propose to address this claim in detail. I simply record that I found no evidence in support of such a claim and no justification for the submissions put on behalf of the applicant, that the rather brusque dismissal of such a claim as unfounded, amounted to inadequate investigation of the complaint made by Ms Judnic against the applicant.
I am satisfied that Mr Simmons, acting on the advice of Mr Johnston, and possibly on the advice of Mr Williams, conducted a simple but reasonably thorough investigation of Ms Judnic’s complaint.
In respect of the meeting on 14 November the evidence of Mr Simmons continued as follows (T12-T14):
“I think what Mr Ball said was that he accepted that he had called Ms Judnic a bimbo on 26 June and he accepted that he may have used profane or offensive language. His justification was he believed because he was frustrated at the level of her competence.
Mr Ball denied the alleged event of 28 October 1996. I believe he did that towards the end of the meeting.
Mr Rattigan said that he basically had two defences. One was he believed that Ms Judnic had been pressured into it. Secondly, he believed that there was this other issue, this Gabales issue, although he did say in conclusion that he had a degree of sympathy with the company’s belief and he could understand how that sort of action would be considered to be unacceptable. I assumed he was referring to the use of the term bimbo and offensive language in general. I do recall Mr Rattigan saying that he had a degree of sympathy with the company’s position and he accepted that such comments, such actions, were unacceptable. He said, well, it would be resolved in another forum and he would see us in court.
Mr Rattigan asked for additional time because he believed that those other issues were sufficiently important and warranted additional time to be investigated. I didn’t accept that additional time was required because I didn’t believe that those other issues were pertinent to what was under investigation. Indeed, we had already done some investigation of them ourselves in any event. Mr Rattigan believed that there was a deficiency in our argument because he believed that the fact that Ms Judnic had been pressured was crucial. Also he believed that the other issue was important and that we hadn’t put sufficient weight on it. He believed that these represented serious flaws in our argument and he therefore believed that if it was to go to court then we would lose.
Towards the end of the meeting I believed that we had covered the ground on all the pertinent issues that had been raised. I believed that we had investigated thoroughly all the issues and I didn’t believe there was anything further that could be added in mitigation and so I believed that the appropriate action at that stage was then termination of employment.
I believe I would have said something along the lines that “your employment is terminated forthwith.” To be quite honest I can’t recall whether Mr Rattigan or Mr Ball made any response to that. The meeting concluded by arrangements being made for Mr Ball to collect his personal effects from his service van and have that transferred to his own vehicle so that he could leave the site. Subsequently, a termination letter was forwarded to him. It is dated 19 November.”
The letter of termination is Exhibit R14. It reads as follows:
“Dear Adrian,
Following our meeting last week, I must advise you that your employment with the Company has been terminated, effective Thursday 14th November 1996.
Yours sincerely,
CADBURY SCHWEPPES PTY LTD
PAUL SIMMONS
HUMAN RESOURCES MANAGER”
Mr Rattigan’s evidence of the termination meeting is summarised below (T2-T7 - 28 May 1997):
“We went in and asked the management what the story was basically, we were told by Paul Simmons who was doing the talking for management. There was an allegation that Adrian had said to one of the women who was employed in the post mix area that she was a bimbo. That was some five or six months earlier. There had been an occasion where Adrian had sworn at the woman and the management said that there was a further occasion when there was the comment, bimbo, made. That was close to the date of that meeting when he was suspended.
Adrian had said that there had been the incident earlier in the year, five or six months earlier. He said that he had worn that and he had apologised to the lady. As far as he was concerned, there had not been a second incident of him using those words to the lady, that is, that he called the lady a bimbo.
I said to Mr Simmons that Adrian had said to me that the lady had told various workers around the place that she had been pressurised into bringing allegations against Adrian and that there was another matter in which Adrian had overheard a conversation and reported it to another member who was taking an action.
Mr Simmons just simply said there hadn’t been any pressure brought on the lady. My response to that was the lady was out there saying that and given that was the circumstance and there were other matters involved I wanted him to investigate those matters. I was referring to the lady having had pressure brought on her to bring a complaint and second, if there was any substance to the fact that the lady had pressure brought on her, that he ought to be then investigating what was going on. Was there some attempt to interfere with another case, with another matter that was before a court?
I had been involved in an argument with management with Mr Simmons. It was about the pressure being brought on the lady. I had said to Mr Simmons that I had wanted the matter investigated. I said that the lady had said to people that there was a pressure brought on her to make a complaint against Adrian. Mr Simmons said to me, basically, who were these people, and I asked Adrian and Adrian told management. Mr Simmons asked Adrian as well. Adrian told three names to the company and to myself at that point, of people who had been involved. He wanted to have those people brought in to talk to management about it.
I said that we needed to be able to investigate matters properly and that they ought to facilitate that. Mr Simmons said to me that there wasn’t any substance in those matters. In the end both Mr Simmons and Mike said that they could categorically deny that there was any pressure brought on the lady. I said “what the fuck did you say that for?” I was amazed. There is a matter that has a member suspended. We have come to management with matters that are extremely serious and simply to have them dismissed out of hand. I said to Mr Simmons “have you investigated this?” He said “no”. I said “has there been any investigation of what I’ve put to you?” He said “no, but I can categorically deny that there was any pressure brought on the lady”.
I asked Mr Simmons what his intent was and was it to terminate Adrian. He said “yes”. I said to him “you can do that, I might have some sympathy with your position around the matter, but you can’t do it this way. You cannot do business like this. Look, you will end up in court and you will get done over in there.”
THE ALLEGATION OF A COMPLAINT MADE “UNDER PRESSURE”
Mr Sattanni was called to give evidence on behalf of the applicant. His evidence as to “pressure” on Ms Judnic was as follows (T11):
“I spoke to Ms Judnic after I heard of the suspension and after I returned to work. I spoke on the Wednesday morning (i.e. 13 November). I was near the photocopier and there were two other servicemen there as well, Stan Berias and Angel Gabales. Kim got out of her chair and she went to the printer she looked at them and she goes, ‘Oh, Nick, none of the service guys are talking to me’. And I said ‘you know, Kim, I don’t know. You’ve got someone up on a charge for the word bimbo. People are probably afraid to, you know, say something. She goes ‘oh, but it wasn’t my fault, I was pushed into it’. I said ‘by whom?’ She goes ‘oh, you know who’. I said ‘no, Kim, I don’t. By whom?’ And she goes ‘oh, just forget it. Don’t worry about it’.
Mr Graham Reid, an employee of Coca Cola and a former employee of the respondent, was also called to give evidence on behalf of the applicant. His evidence at T30 included the following:
“Kim has rung me on a few occasions to see how I was going with Coca Cola. There would have been references to Mr Ball in the course of some of these conversations. I can’t remember the date but I said, ‘how is it going down there Kim?’ She said ‘the shit’s hit the fan something shocking’. In her words she said that she went to management about Adrian’s behaviour towards her. She said that she had had enough and that she went to management about Adrian. And then I said, ‘oh, well, if you had to do it, you had to do it’. Since that conversation she rang me and said that Adrian was dismissed and she said she didn’t want it to go that far, that, she is sorry it happened. She was pressured into it and at the same time she also said she was glad she did it because she could no longer work with Adrian in that environment.”
I observe that the applicant did not call Mr Gabales or Mr Berias to support the claim that Ms Judnic had made her complaint under pressure. I also observe that Mr Simmons’ rejection of pressure on Ms Judnic was made on 14 November and that, three days earlier, in the course of his investigation, he had spoken to Mr Gabales and Mr Berias.
Ms Judnic denied that she told Mr Reid that she was “put up to this” (i.e. making the complaint against the applicant) (see T31 and T35).
Ms Judnic also denied that she told Mr Sattanni, Mr Gabales and Mr Berias that the termination of the employment of the applicant “was not my fault because I was pushed into it”. This was put to her twice in cross-examination (see T36) and she replied “definitely not.... no, I definitely did not say that”.
The Court is not satisfied that the applicant told Messrs Sattanni, Gabales and Berias that she was pressurised into making a complaint against the applicant.
The Court is not satisfied that in a telephone conversation, after the termination of the applicant’s employment, Ms Judnic told Mr Reid that she was pressured into making her complaint.
More importantly, even if Ms Judnic did tell Messrs Sattanni, Gabales, Berias and Reid that she was pressured into making the complaint, Mr Simmons was entitled to reject the allegation that Ms Judnic was so pressured. His refusal to investigate that allegation further on 14 November did not constitute an inadequate investigation of the complaint made by Ms Judnic and did not render inadequate or unreasonable the investigation he had already made of her complaint. Furthermore, even if Ms Judnic made her complaint as a result of pressure, persuasion or advice, this would not necessarily reflect on the substance of the complaint.
CONCLUSION
I am satisfied, after assessing the evidence given for the applicant and the respondent that the applicant did use the word “bimbo” on 28 October in a conversation with Ms Judnic in a context which implied that she was a bimbo. I am satisfied that the applicant
had also called Ms Judnic a bimbo in June
had admitted it
had been directed not to do it again
was warned by Mr Hoffman and that warning was recorded by Mr Hoffman
A direct statement or implication by the applicant to Ms Judnic that she was a bimbo was an adequate justification for the respondent to terminate the applicant’s employment. A statement to a woman that she is a bimbo, be it a direct statement or an implied statement, is offensive. It is a form of harassment or discrimination on the grounds of sex. In some circumstances the use of the term may be at the lower or milder level of harassment or discrimination. In other circumstances, where it is resented and where a previous complaint has been made and where the offender has admitted an earlier offence and has been warned, it can be a serious matter. In any event, the Court is not to put itself in the managerial chair: Gibson v Bosmac Pty Ltd (1995) 60 IR 1. It is not for the Court to make a decision on behalf of an employer in terms of the degree and nature of harassment or to disagree with a decision made by the employer. In Wadey v YMCA Canberra (unreported, IRCA, Moore J, 12 November 1996), Moore J said:
“It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics (1995) 62 IR 371 which has been referred to, with approval, on a number of occasions. Lehmann was entitled to view Wadey’s conduct with the gravity she did. Her decision to terminate was for a valid reason.”
Moore J was of course referring to the description of “valid reason” by Northrop J in Selvachandran as a reason which is “sound, defensible and well founded”.
The respondent had a detailed policy on sexual harassment (Exhibit R6). The applicant had been severely disciplined in 1994 for a serious incident of harassment and had attended a special program on sexual harassment.
The respondent had a valid reason for the termination of the employment of the applicant. The termination was not unlawful. The application will be dismissed.
The Court notes that in terms of credibility the applicant was not assisted by the evidence he gave in the hearing which seemed designed to ameliorate the gravity of his admitted offences in March 1994 and June 1996.
CREDIBILITY OF MS JUDNIC AND MR HOFFMAN
Counsel for the applicant asserts that the Court “must have serious doubts as to the veracity of Ms Judnic...and...should treat the evidence of Mr Hoffman with suspicion. There were elements of the evidence of both witnesses which did not impress. That does not alter the conclusion reached on a balance of probability, that the applicant, on 28 October, implied that Ms Judnic was a bimbo and referred to another woman with the first name of Kim as “just another bimbo”.
THE ADDITIONAL ALLEGATION MADE AT THE HEARING
The Court is unimpressed with that part of Ms Judnic’s evidence, given for the first time in the hearing, that early on in her employment the applicant had been particularly crude and offensive and had referred to her as “having small tits”. Ms Judnic has stated that she decided to “let that go”. In other words, if the remark was made she never complained about it and the respondent presumably had no knowledge of such an allegation until at or shortly before the hearing.
The Court has taken no account of this particular allegation and has not attempted to determine whether or not such a statement was made by the applicant.
Counsel for the respondent has suggested that this allegation is after acquired knowledge on which the respondent is entitled to rely as some form of justification for termination of employment for valid reason. This proposition is rejected. I am not convinced that the common law retrospective justification of alleged wrongful dismissal relying on information not known at the time of dismissal but discovered subsequently: Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 and Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; 43 IR 210; has any application under the Workplace Relations Act 1996. (See Geros v Mitcham Automatics Vic Pty Ltd (1995) 64 IR 206 at 213). In any event, the respondent cannot rely on a mere allegation as after acquired knowledge validating a termination of employment. Although I doubt it, it may be possible for the respondent to rely on a genuine belief, reached after the termination of employment and after reasonable investigation, that a crude and offensive remark has been made against Ms Judnic. However, I am not satisfied that such a belief could be reasonably and genuinely held now by the respondent, let alone relied on as after acquired knowledge validating a termination of employment.
The Court does accept that it would be possible for Ms Judnic to be so embarrassed by such a remark as to decide to make no complaint in relation to it. However, I emphasise that I have taken no account of the allegation and have reached no conclusion as to the likelihood that the remark was made. The allegation by Ms Judnic in the hearing has been of no assistance whatsoever in determining the matter. The allegation, made so late, has done some damage to an assessment of Ms Judnic as a reliable witness. Be that as it may, the Court has reached the conclusion that Ms Judnic’s evidence of the incident on 28 October is to be preferred to the applicant’s denial of the incident. To accept the applicant’s version, the Court would have to conclude that Ms Judnic has made a false complaint against the applicant, repeated the complaint on at least two occasions to Mr Simmons, repeated the complaint to others, put the complaint in writing and perjured herself in her evidence in this Court. That is not accepted as a likely course of events. Despite real reservations about some aspects of Ms Judnic’s evidence and some aspects of the evidence of Mr Hoffman, the Court has accepted their version of events where it conflicts with the evidence of the applicant. Reference has already been made to the fact that the applicant was also found to be an unimpressive witness.
ORDERS
The Court orders that the application be dismissed.
I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan.
Associate:
Dated: 31 October 1997
Counsel for the Applicant: Ms O'Brien Representative for the Applicant: AMWU Counsel for the Respondent: Mr F Parry Solicitor for the Respondent: Sharwood Eyers Wilkie Date of Hearing: 26, 27 and 28 May 1997 Date of Judgment: 31 October 1997
0
5
0