Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation - [2014] FWC 2467

[2014] FWC 2467

FAIR WORK COMMISSION

DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Australian Postal Corporation
(C2013/101)

COMMISSIONER ROE

MELBOURNE, 17 APRIL 2014

Dispute in accordance with disputes settlement clause of Agreement - Disciplinary measures “harsh, unjust or unreasonable” - serious and wilful misconduct - violence and ethics policies.

Introduction

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the disputes settlement procedure of the Australia Post Fair Work Agreement 2010 (the Agreement) which was in force at the time the alleged events took place. The Agreement has now been replaced by the Australia Post Enterprise Agreement 2013 (the 2013 Agreement). The relevant provisions of the Agreement and the 2013 Agreement are similar. The original dispute involved a number of different matters affecting a number of work locations in Queensland. I conciliated the matters at a number of conferences in February and April 2013. The matters in dispute were resolved save for disciplinary matters affecting three employees at the Mansfield Delivery Centre of Australia Post in Brisbane. This decision resolves those remaining disputes.

[2] It is not in contention and I am satisfied that:

● The matters in dispute are within the scope of Clause 42 which is the disputes settlement provision of the Agreement.
● The relevant steps required by the Agreement have been followed such that the Commission is now empowered by Clause 42.6 of the Agreement to resolve the dispute by making a determination that is binding on the parties and to use the powers available to it under the Act.

[3] In this respect I note that one of the requirements prior to proceeding to the Commission arbitration of the dispute is that the CEPU has been authorized to apply for arbitration by its relevant decision making body in accordance with its rules. I am satisfied by correspondence provided by Mr Dwyer, National Secretary of the Communications Workers Division, dated 7 April 2014 that this is in fact the case.

[4] I am satisfied that the dispute is about the outcome of the disciplinary processes imposed upon the three employees by Australia Post arising from incidents which occurred on 2 November 2012 and 7 November 2012.

[5] The three employees are Postal Delivery Officers (PDOs) Mr Graveson, Mr Johnson and Mr McDonald. Mr Graveson was a union delegate at the site and had been employed by Australia Post for ten years at the time. Mr Johnson had been employed as a PDO for 25 years and Mr McDonald had been employed as a PDO for 20 years at the time of the incident. All three employees gave uncontested evidence that there had been no prior disciplinary action taken against them during their employment with Australia Post. Another PDO, Mr Miller, also gave evidence. Mr Miller is also a union delegate at the site and had been employed by Australia Post for 16 years at the time of the incident.

[6] The CEPU alleges that the disciplinary actions of Australia Post are inconsistent with Clause 36 Employee Conduct and Discipline of the Agreement in that:

● The discipline imposed on the three individuals is action which is harsh, unjust or unreasonable and therefore contrary to Clause 36.5 of the Agreement. Clause 36.5 provides that: “In exercising these rights, Australia Post shall not take action which is harsh, unjust or unreasonable.”
● The discipline imposed on one of the individuals, Mr Graveson, is contrary to Clause 36.2 of the Agreement. It is not in contention that the allegation against Mr Graveson is the first alleged breach of Australia Post’s “Our Ethics” Policy made by Mr Graveson and therefore under the terms of Clause 36.2 Australia Post cannot transfer Mr Graveson unless the case is “serious and wilful misconduct or grossly negligent conduct”. It is not alleged that the conduct of Mr Graveson was grossly negligent but it is alleged that it was serious and wilful misconduct. The CEPU argue that the conduct was not serious and wilful misconduct and that the disciplinary action taken by Australia Post of transferring Mr Graveson was therefore also contrary to Clause 36.2 of the Agreement.

[7] Clause 36 provides that Australia Post has a right to dismiss an employee, impose a penalty of a reduction of up to two increments for a period of up to 12 months (or equivalent penalty), or to transfer an employee for specified reasons. However, except in cases of serious and wilful misconduct or grossly negligent conduct these penalties are not available where it is a first breach of Australia Post’s Ethics Policy. Clause 36 sets out certain procedural requirements and provides access to a review of any decision by a Board of Reference.

[8] The disciplinary actions of Australia Post in respect to Mr Graveson have been subject to review by a Board of Reference in accordance with Clause 36.7 and 36.8 of the Agreement. The Board of Reference upheld the decision of Australia Post.

Approach to be taken to the resolution of the dispute.

[9] It is accepted that Australia Post, the affected employees and the CEPU have utilised the appropriate procedural steps in the Agreement and in Australia Post policies to deal with these disciplinary matters and to seek to resolve the dispute over the outcome of the disciplinary process. This has been a lengthy process involving internal Australia Post investigation and review, the Board of Reference in the case of Mr Graveson, conciliation before the Commission and a separate mediation process. In the circumstances of this particular matter the dispute is primarily about the outcomes of the disciplinary processes rather than the disciplinary processes utilised by Australia Post.

[10] The CEPU argue that the previous steps in the discipline procedure undertaken in respect to the three employees have not involved testing of evidence including by cross examination. The CEPU argue that essentially the Commission is hearing this matter “de novo” and should determine whether or not the disciplinary outcome is harsh, unjust or unreasonable based purely upon the evidence put before Commission in these proceedings which is available for cross examination. In the Commission proceedings Australia Post did not submit witness statements from some of the witnesses who provided statements to Australia Post at earlier stages of the disciplinary process.

[11] Australia Post argue that in settling the dispute I must give appropriate weight to what has gone before, during the disciplinary process. The disciplinary process is mandated by Clause 36 of the Agreement. Australia Post argues that I should only disturb the outcome reached by Australia Post through that disciplinary process if I am satisfied that the outcome is harsh, unjust or unreasonable.

[12] Section 739 of the Fair Work Act (2009) (Cth) (the Act) makes it clear that I cannot make a decision which is inconsistent with the terms of the Act or the terms of the Agreement. It follows from this that if I find that the disciplinary action taken by Australia Post is action which has been taken in accordance with the requirements of Clause 36 then I cannot make a decision to alter those disciplinary outcomes. This is because I am satisfied the Agreement clearly authorises Australia Post to take disciplinary action and impose penalties provided it is taken in accordance with Clause 36. The disciplinary outcomes are described in the opening phrase of Clause 36 as “Australia Post has a right” and this is reinforced in Clause 36.5 which provides that: “In exercising these rights, Australia Post shall not take action which is harsh, unjust or unreasonable.” However, should I find that the action taken by Australia Post was not consistent with Clause 36 because it was “harsh, unjust or unreasonable” (Clause 36.5) or because in the case of Mr Graveson it was not “serious and wilful misconduct” (Clause 36.2) then I have the discretion to set aside or alter the outcome of the disciplinary process and make other related determinations.

[13] If I am satisfied that there has been a clear breach of the disciplinary process specified in the Agreement then it would generally be appropriate in settling the dispute to “set the matter right”. This is because there are strong public policy grounds for assisting the parties to ensure that the terms of an Agreement are followed when exercising discretion under the disputes settlement procedures of an Agreement. So if I find that the outcome of the disciplinary process was not open to Australia Post because it was inconsistent with the Agreement provisions and the policies associated with those provisions then I would be inclined to exercise my discretion and to interfere with the outcome of the process in settling the dispute. If I find that the outcome was open to Australia Post but that on balance the outcome was harsh, unjust or unreasonable then it will depend upon the circumstances whether or not it is appropriate to exercise my discretion to interfere with the outcomes reached by Australia Post in resolving the dispute. In this respect the task of settling the dispute is different from the task before the Commission in an unfair dismissal matter where the Commission must decide whether or not the termination was unfair.

[14] In considering whether or not the action taken was contrary to Clause 36 I must have regard to Australia Post’s “Our Ethics” Policy which is specifically referred to in Clause 36 and also to the Australia Post Employee Counselling and Discipline Policy and Procedures and the Australia Post Violence Policy. The Our Ethics policy refers to adherence to the Employee Counselling and Discipline Process. The Our Ethics policy refers to unacceptable behaviour including “threatening, abusing or intimidating (physically, verbally or in writing), or injuring or attempting to injure, another person, whether at work, during out of hours activities or when using social media” (Clause 3.3.2(d) of the Our Ethics Policy). In addition, the Our Ethics Policy refers to adherence to Australia Post supporting policies and procedures. The Violence Policy is a policy which clearly supports the Our Ethics Policy and particularly Clause 3.3.2 of that policy.

[15] Generally PDOs start work at 6am and spend the first few hours organising the mail required for delivery on their allocated round. This includes retrieving mail which has been delivered to the centre in a sequenced form; sorting /sequencing any mail which has arrived which is not in a sequenced form; and retrieving and sorting/sequencing large letters and small parcels relevant to their round. In addition to this where PDOs are absent the rounds which would otherwise have been allocated to them may be split amongst the other PDOs. This involves both indoor work sorting and preparing the mail and outdoor delivery work. On some occasions relief PDOs and/or staff from other locations can be sourced to assist with all or some of this work. The time taken by a PDO to complete the allocated work will depend upon a number of factors which vary from day to day including but not limited to, levels of absenteeism and available relief, overall mail volumes, the proportion of the mail which is sequenced, whether the mail arrives at the delivery centre on time or late, the proportion of large letters and parcels, whether or not there are split rounds to be organised and sorted indoors and whether or not there are split rounds to be delivered outdoors.

[16] Australia Post and the PDOs do not know until after they start work in the morning whether or not overtime will be required and the amount of overtime which will be required to ensure that the mail is delivered. The evidence of Mr Fryer for Australia Post was that the amount of overtime required for a particular day would generally be known by around 8am in the morning.

The findings by Australia Post against Mr Johnson and Mr McDonald

[17] Australia Post found that on 2 November 2012 Mr Johnson and Mr McDonald failed to discharge their responsibilities to:

(a) consistently perform work to their expected standard or higher (Clause 3.1.1(e) of the Ethics Policy); and

(b) provide a consistently high-standard service that ensures our customers feel valued (Clause 3.2.1(a)) of the Ethics Policy.

[18] Australia Post found that Mr Johnson and Mr McDonald on 2 November 2012 failed to complete delivery duties allocated to them and returned some bundles of undelivered mail at approximately 2.30pm (one hour after their ordinary finishing time). Australia Post noted that: “this follows the allocation of significant external resources to ensure completion of delivery was undertaken by all PDO’s at Mansfield DC.” 1

The circumstances surrounding the warning counselling issued to Mr Johnson and Mr McDonald.

[19] In the period leading up to the disciplinary action a number of employees at the Mansfield Delivery Centre and their representative the CEPU were discontented about the large amount of overtime which was required to be worked and perceived problems with late delivery of mail to the centre including the delivery of mail which had not been sequenced and therefore required sorting before the Postal Delivery Officers (PDO) could take the mail out for delivery. These matters were also affected by short and long term absences, unfilled vacancies and problems with filling such vacancies. Management were aware of the discontent amongst some employees and the CEPU. Mr Fryer, Operations Support Manager for the area which contains the Mansfield Delivery Centre, concedes that: “Australia Post was struggling with recruitment generally (particularly given the competition with the mining sector) and mail levels were increasing in the lead up to Christmas.” 2 Mr Parker gave similar evidence.3

[20] On the morning of 2 November 2012 the Mansfield Delivery Centre was down by nine PDOs, including five on sick leave. Given that there are approximately 41 PDO runs at Mansfield this was a significant problem. Mr Fryer made phone calls to other delivery centres and was able to arrange for three relief staff to assist. Following this Mr Fryer was advised by Mr Parker, Delivery Manager Mansfield, that approximately 18 PDOs had told their team leaders, who had reported to him, that they could not work after 2.30pm that day. The rostered start time for PDOs that day was 6am and the rostered finish time was 1.30pm. In response to this situation Mr Fryer took action to find further additional resources to assist at the Mansfield Delivery Centre. The direct evidence of Mr Johnson was that he told his team leader that he could not work more than one hour of overtime on that day. The evidence of Mr Miller, PDO and union delegate, was that he told the team leader that he wanted to finish at 2.30pm. The evidence of Mr McDonald was that he told the team leader that he only wanted to work until 2.30pm or that he’d like to finish at 2.30pm.

[21] Some of the mail which would have been sorted and organised by PDOs who were absent had to be split, that is be sorted and organised, by other PDOs in addition to their normal indoor sorting and organisation work. 4 However, Mr Fryer was able to arrange further additional resources so that none of the outdoor delivery runs had to be split, that is the PDOs only had to actually deliver their normal runs.

[22] In response to rumours that employees would only work until 2.30pm Mr Parker says that he took the following action:

“Because of these rumours, I asked the team leaders to give a direction to the PDOs that any mail that was unable to be delivered should be returned to the office in the centre (and not left in the Australia Post bins in the suburbs). This would allow us to attempt to have another PDO or a team leader deliver that mail. However, we did not expect mail to come back, nor did we condone a failure to deliver mail in accordance with normal arrangements.” 5

[23] In response to my question Mr Parker clarified that it was only the first of these matters which he directed the team leaders to tell the PDOs. The other two matters, covered by the second and third sentences quoted above, were a description of his motivation and understanding at the time. 6

[24] Mr Miller says that: “the team leaders got a list of those who wanted to do only one hour’s overtime. The splits were taken away and we were told that any mail brought back was to be left at the office.” 7 Mr McDonald says that: “we were told that any mail that we brought back was to be put outside the office of the boss.”8

[25] Mr Johnson says that he told the team leader that he could not work more than one hour’s overtime and that:

“After I told the team leader, he saw Peter Parker. The Team Leader called me and several others into the office. He asked why staff were refusing overtime. While I did not get an opportunity to respond personally, he was already aware of my situation. We asked what to do with the mail if we couldn’t finish the run. He said to bring it back and put it in front of the office.” 9

[26] Mr Graveson says that:

“An announcement was made by the team leaders, any (sic) my team leader, to say that if you cannot do overtime, to let them know and if you have trouble or couldn’t complete your delivery let them know. I advised my team leader that I could not do overtime. I did not do overtime at all that day and I completed my normal run.” 10

[27] Although Mr Parker refers to it as a rumour, the evidence demonstrated that the employees had provided advice to their team leaders that they did not wish to work beyond 2.30pm.

[28] Mr Fryer provided an analysis of the working times on 2 November 2012 for 18 of the PDOs. 11 The total number of PDOs who were rostered to work from 6am on that day is more than twice that number. Of the 18 in the analysis only two, Mr Johnson and Mr McDonald failed to complete their deliveries and returned mail. It is not in contention that it would have taken between a further 30 and 45 minutes for them to complete their mail deliveries. As identified earlier, arrangements had been made for other employees to deliver the mail that day in the event that any mail was returned and this in fact happened when the mail was returned.

[29] Of the 16 PDOs in the analysis who did not return mail all except for two completed their delivery and returned to the depot by around 2.30pm or earlier. Australia Post use a modelling system to predict indoor and outdoor delivery times given mail volumes. The CEPU submitted that the system is not a reliable predictor of the indoor and outdoor times required. Australia Post submit that although the system only produces an estimate it is a useful estimate. Of the 18 employees 3 finished significantly earlier than predicted by that system and 11 finished significantly later than predicted by that system. 14 of the employees took longer to complete their indoor work than expected. This is not surprising given the factors described earlier. Mr Johnson took one hour longer than predicted on the indoor work and Mr McDonald 42 minutes longer than predicted on the indoor work. It is therefore apparent that had the indoor work been finished in the predicted time the outdoor work would have been completed by these two employees by 2.30pm. However, there were 5 other employees in the analysis whose indoor work also took thirty minutes or more longer than predicted. Mr Fryer for Australia Post was asked about one of those employees who had taken more than 30 minutes longer than predicted to complete his indoor time and he acknowledged that no disciplinary action was appropriate to be taken or had been taken against that employee.

[30] It is not suggested that Mr Johnson and/or Mr McDonald deliberately worked slowly in order to ensure that they did not deliver all their mail by 2.30pm. However, Australia Post did raise concerns about the standard of performance of the two employees on their indoor work. 12

[31] Mr Fryer conducted interviews with Mr Johnson and Mr McDonald and after considering the matters that they raised determined to issue a warning counselling.

[32] The disciplinary procedure provides for an escalating series of actions. The response to minor shortfalls in the standards in Our Ethics is to provide face to face feedback - that is informal counselling. The response to continued or repeated unacceptable behaviour and or performance or more serious behaviour or performance issues is more formal counselling. Such counselling has three levels - formal counselling, warning counselling and disciplinary inquiry. The disciplinary inquiry is not available in the case of a first offence unless the conduct is alleged to be “serious and wilful misconduct or grossly negligent conduct.” The Employee Counselling and Discipline Process says that warning counselling will be given in cases where “the alleged more serious misconduct and or apparent deliberate under performance against an agreed or prescribed standard is proven during the warning counselling interview.” 13 Prior to giving the warning counselling the responsible manager must be satisfied that further Formal Counselling would not achieve the necessary improvement, or warning counselling is appropriate or more serious action would be appropriate.14

[33] At the interview Mr McDonald said that:

● In the last eleven days he had done 29 hours overtime and he believed that to be excessive.
● Mail was one hour late and was shelf sorted.
● His run was a large run and he tried as hard as he could.
● The team leaders were just waiting to see how much mail was going to be brought back.
● He provided evidence that he provides good customer service.
● The boys asked who wanted to finish at 2.30pm and Scott believed he was being offered that option.
● He believed that he had done reasonable overtime.
● He would commit to complete deliveries each day in the future. 15

[34] At the interview the Australia Post manager expressed the view that Mr McDonald’s indoor performance was a concern on the day and that this meant that a considerable amount of overtime was not justified. Australia Post also expressed the view that it was unacceptable to bring mail back. Australia Post accepted that the estimated times for the indoor and outdoor work based on the Australia Post system had not been displayed and should be displayed in the future and that Australia Post should continue to assist with allocating available resources to assist with staff shortages.

[35] Mr Fryer considered the matters raised by Mr McDonald. He investigated the issue of whether Mr McDonald’s mail was late and concluded that it had arrived on time although it had to be shelf sorted. He noted that both Mr McDonald’s and Mr Johnson’s mail are sorted at similar times at the Underwood Mail Centre and is dispatched together from that Centre and so would have arrived at Mansfield at the same time. Mr Fryer decided that a warning counselling was appropriate.

[36] At the interview Mr Johnson said that:

● He had a lot of personal problems since late July. He saw a counsellor on Thursday 1 November 2012 but his wife unexpectedly cancelled and this meant that he was upset on 2 November 2012.
● His head wasn’t right on the day. He had a million things running through his head. This did affect his performance of the indoor duties.
● He had performed significant amounts of overtime in the recent period.
● He would commit to complete deliveries each day in the future. 16

[37] Mr Fryer considered the matters raised by Mr Johnson and concluded that although Mr Johnson had legitimate personal issues they were not justification for his actions on the day.

[38] On 5 November 2012 there was a meeting involving the union delegates and relevant senior managers to discuss the situation concerning the overtime, staffing and mail delivery concerns. The union delegates felt that it was a constructive meeting.

Conclusions concerning the disciplinary action against Mr Johnson and Mr McDonald.

[39] I found Mr McDonald’s evidence concerning the reasons why his indoor work took longer than might have been expected by Australia Post to be convincing. I consider that he was direct and consistent in his responses to this matter. There was no direct evidence which challenged Mr McDonald’s evidence. I am satisfied that it is possible that Mr Fryer is correct in his estimation that Mr McDonald’s mail did arrive at Mansfield on time. However, I am also satisfied that Mr McDonald is correct that the mail was not available to him on time and that it was not in an accessible form. I accept the evidence of Mr McDonald that he had to make a number of trips at different times to obtain the mail from night sorters and other locations and that he then had to shelf sort the mail. I am not satisfied that there was an appropriate basis to discipline Mr McDonald for his indoor work performance on 2 November 2012 particularly given:

● The evidence about the particular circumstances that existed on 2 November 2012.
● That the data provided by Mr Fryer shows that a number of other employees took significantly longer than predicted to complete the indoor organising and sorting work.
● That there is no suggestion that Mr McDonald’s indoor work had previously been found to be below standard.
● That Mr McDonald had not previously been the subject of informal or formal counselling concerning below standard performance and in fact Mr McDonald provided evidence of his good customer service having been recognised by Australia Post.
● That Australia Post’s own disciplinary procedure suggests that minor or isolated performance shortfalls should appropriately be dealt with by informal counselling in the first instance.

[40] The evidence of Mr Johnson concerning the reasons why his indoor work performance was slow on 2 November 2012 has been consistent. I am satisfied that any shortfall in the indoor work performance by Mr Johnson on 2 November 2012 is explained by his personal distress. I am not satisfied that there was an appropriate basis to discipline Mr Johnson for his indoor work performance on 2 November 2012 particularly given:

● The evidence about the particular circumstances that existed on 2 November 2012.
● The fact that the poor performance was directly attributable to explained personal distress.
● That Mr Johnson is a long serving employee with a good employment record.
● That there is no suggestion that Mr Johnson’s indoor performance had previously been the subject of informal or formal counselling concerning below standard performance.
● That Australia Post’s own disciplinary procedure suggest that minor or isolated performance shortfalls should appropriately be dealt with by informal counselling in the first instance.

[41] Having established the poor performance of the allocated work is not a proper basis for the disciplinary action, the only basis upon which the disciplinary action against Mr Johnson and Mr McDonald could be justified is if their failure to work additional overtime after 2.30pm on 2 November 2012 can be regarded as a breach of the Ethics Policy.

[42] I accept that Australia Post and its employees, including all those PDOs who appeared in these proceedings, take pride in ensuring that Australia Post’s customer service obligations are met and regard it as important that the mail which arrives at the Mansfield Centre is distributed and delivered on the day. All witnesses accepted that generally speaking this means that PDOs will complete the work allocated to them and do not return mail even where this results in the working of overtime. Neither Mr Johnson nor Mr McDonald had ever returned mail before in their long careers. I therefore accept that without special or extenuating circumstances an unexplained failure to deliver mail could well form the basis for disciplinary action and could well be a breach of the Ethics Policy. It is also clear that in settling disputes regard has to be had for certain principles, including that Australia Post have accountability to provide services to the customer in the manner required by the customer and to meet its Community Service Obligations (Clause 42.1.3 of the Agreement).

[43] The events of 2 November 2012 were unusual. The requirement to work overtime is governed by the Agreement and the following provision in particular:

“17.1 General Conditions

17.1.1 Reasonable Overtime

(a) Subject to clause 17.1.1(b) Australia Post may require an employee to work reasonable overtime in accordance with the provisions of this clause.

(b) Provided that this subclause does not apply to employees employed in accordance with the provision of clause 23.13 -Parental Leave - Right to Request

(c) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:

(i) any risk to employee health and safety;

(ii) the employee's personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise;

(iv) the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

(v) any other relevant matter.”

[44] Having considered all of the evidence of the managers and the PDOs I consider it likely that the decision of 18 PDOs on 2 November 2012 to request to not work overtime beyond 2.30pm was an expression of frustration which snowballed. As submitted by Australia Post a number of options were available to Australia Post in this difficult situation. They could have regarded the situation as unprotected industrial action and they could have issued directions to employees. However, Mr Parker and Mr Fryer took a much more prudent course, consistent with Australia Post’s obligations to its customers and employees, to attempt to resolve the situation. The managers took this decision in the context of their knowledge that employees at Mansfield had been called upon to work significant amounts of overtime and that there were frustrations over a number of issues which the PDOs perceived added to work pressure. Mr Parker and Mr Fryer arranged sufficient additional staff to ensure that PDOs were not required to perform additional outdoor duties however the time taken to arrange additional staff and the mail situation on the day did mean that some additional indoor duties were required to be performed by the rostered PDOs. By taking these actions Mr Parker and Mr Fryer believed that those employees who wished to finish at 2.30pm would be able to finish at or near that time. The evidence of Mr Parker and Mr Fryer was that they believed that Mr Johnson and Mr McDonald should have been able to complete their work by 2.30pm. However, I have already found that their failure to be able to complete their work by 2.30pm was not a reasonable basis for discipline.

[45] Having considered the evidence of the witnesses summarised earlier I am satisfied that the PDOs, and Mr Johnson and Mr McDonald in particular, understood that their request to finish work at 2.30pm had been acknowledged by Australia Post and that they were being told that if they had not finished work by that time they should return mail to outside the manager’s office. In anticipation that this could occur Australia Post had made arrangements for any such mail to then be delivered that day by other PDOs or team leaders. I accept the evidence of Mr Parker that it was not his intention to condone PDOs returning mail. I also accept that Mr Parker assumed that PDOs would understand that there is a general requirement and expectation that mail not be returned. However, in a situation where Mr McDonald and Mr Johnson had specifically requested not to work overtime beyond 2.30pm and where in response they were told by team leaders that they should leave any mail which was undelivered outside the manager’s office and in the absence of any specific rejection of their request not to work overtime beyond 2.30pm, I consider that Mr McDonald and Mr Johnson reasonably believed that their request had been approved.

[46] The evidence of Mr McDonald and Mr Johnson in this respect is reinforced by the evidence of Mr Miller and Mr Graveson. There was no evidence before me, and there does not appear to have been any such evidence before Mr Parker or Mr Fryer, that anything was said to Mr McDonald or Mr Johnson that suggested that they were expected to work beyond 2.30pm if they were unable to deliver the mail by that time.

[47] I am satisfied that consistent with the Agreement, if Australia Post was to refuse the request of Mr McDonald and Mr Johnson to not work overtime past 2.30pm on 2 November 2012 they would have to do so having proper regard to the criteria in Clause 17.1(c) and would be obliged to inform the employees accordingly.

[48] I consider that, unless the action of 18 employees on 2 November 2012 was treated as unprotected industrial action, Australia Post was obliged to regard it as 18 requests to not work overtime in accordance with Clause 17.1(c) of the Agreement and to consider and respond to those requests accordingly. Effectively this is what Australia Post did by issuing the instructions to the employees through the team leaders.

[49] Considering the criteria in Clause 17.1(c) of the Agreement I am satisfied that:

● Both Mr Johnson and Mr McDonald had reasonable health and safety grounds to refuse overtime beyond 2.30pm on the grounds that in the context of the large amount of overtime they had already worked in the recent past, the amount of overtime they were being asked to do could be reasonably perceived as posing a risk to their health and safety. I am satisfied that fatigue can reduce concentration and can lead to greater risk of accidents and that the PDO job is one which has a number of inherent risks including those associated with traffic, terrain and weather. Of course the amount and history of overtime worked which might justify a refusal to work overtime on health and safety grounds will vary depending upon the particular circumstances. The evidence was that Australia Post does not monitor this situation or have particular guidelines in respect to this situation.

● Mr Johnson had strong personal circumstance and family responsibility reasons for not wishing to work additional overtime on 2 November 2012. Mr Parker was aware of the issues affecting Mr Johnson. Mr Johnson gave evidence, which I accept, that there were strong personal reasons why he wanted to be home with his wife after 2.30pm.

● Overtime requirements are not generally known before the day in question and hence notice at the beginning of the shift is reasonable in circumstances where there is not a particular appointment known in advance which is the cause of the request to not work overtime. The causes of the requests in this case were not related to any known appointment.

● The needs of the workplace or enterprise have to be balanced against these factors, however, in a circumstance where the manager has specifically made arrangements to enable the mail to be delivered if the eventuality of an employee reasonably refusing overtime were to arise, this factor is not sufficiently strong enough to outweigh the other factors.

[50] Australia Post submitted that there was some significance in the fact that the employees were prepared to work one hour of overtime and that they were entitled to a meal allowance after working one hour of overtime. I do not consider this affects the conclusions I have reached. I accept that Mr Johnson did not have to be home to meet his wife at an exact time, however, I accept that Mr Johnson had strong personal reasons for wanting to be home to meet his wife as early as possible and for that reason Mr Johnson specified that he could only work limited overtime on 2 November 2012. Similarly fatigue did not mean that Mr McDonald had to finish at a specific time however it meant that he had reasonable grounds to want to limit his overtime on the 2 November 2012. I accept that Mr Johnson did not specifically tell his team leader why he did not want to work overtime after 2.30pm. However, given that Mr Parker was aware of the personal issues affecting Mr Johnson and that when asked Mr Johnson clearly articulated his reasons, I am satisfied that the request was for reasons which on balance meet the criteria in Clause 17.1.1(c) of the Agreement. Similarly Mr McDonald did not specifically tell his team leader that he did not want to work overtime after 2.30pm because he was fatigued however when asked he clearly and consistently articulated the reason.

[51] I am satisfied that to determine that the return of mail by the two employees at 2.30pm was a serious breach of the Australia Post Ethics it was necessary for Australia Post to reach a conclusion that the refusal to work overtime past 2.30pm by Mr McDonald and Mr Johnson was not consistent with the criteria in Clause 17.1(c). To do otherwise would be clearly inconsistent with the Agreement. An employee cannot be disciplined for exercising a right under the Agreement. However, there is no evidence that Mr Fryer specifically considered the criteria in Clause 17.1(c) in reaching his decision. The interview report suggests that Mr McDonald clearly justified his actions on the basis of the reasonable overtime rights and his view that his actions had been condoned or approved. Mr Johnson also justified his actions partly on the grounds that his request had been condoned or accepted.

[52] For these reasons I am satisfied that the disciplinary action taken against Mr Johnson and Mr McDonald was not consistent with the Agreement and was inconsistent with Clause 36.5 of the Agreement: “In exercising these rights, Australia Post shall not take action which is harsh, unjust or unreasonable.” It was harsh to take action of a warning counselling in circumstances where Australia Post’s own policy would suggest that a lower level of response was the appropriate one. It was unjust or unreasonable to take the action in circumstances where the two employees made a reasonable request consistent with Clause 17.1(c) of the Agreement to not work overtime beyond 2.30pm and in circumstances where they reasonably believed that their request had been condoned or accepted.

The circumstances surrounding the disciplinary decision to transfer Mr Graveson to another worksite.

[53] The Violence Policy defines five levels of violent behaviour. Level 5 is described as “intimidation” and is defined as follows:

“Acts of intimidation are defined as those which are intended to, or likely to cause fear or reduce the sense of safety and security of other employees. Intimidatory behaviour would include both verbal and non-verbal physical acts e.g. physically obstructing another’s movement, “accidental” physical contact such as shouldering, yelling and screaming at another employee and non specific comment about harm or danger which is likely cause fear or decrease the security of others.” 17

[54] Australia Post’s violence policy makes it clear that a breach of the policy means that your right to continued employment in Australia Post will be reviewed. In respect to intimidating behaviour the policy specifically notes that depending on the facts and circumstances and seriousness of the alleged breach, this may lead to an inquiry and suspension.

[55] It is self evident that a breach of the violence policy could be “serious and wilful misconduct” which justifies transfer of an employee even for a first offence. It is likely that intimidatory behaviour as defined in Australia Post’s policy will be found to be wilful. Of course a person may not intend to intimidate another person by their behaviour; however, if the behaviour itself is wilful then whether or not the behaviour is intimidatory is a matter to be judged objectively. Generally speaking intimidatory behaviour which is intended to, or likely to cause fear or reduce the sense of safety and security in other employees could appropriately be described as serious in the workplace context. It is possible that, depending upon the circumstances, initimidatory behaviour may not be found to be serious and wilful misconduct but in many circumstances it will be.

[56] Australia Post alleges that on 7 November 2012 at approximately 6.15am Mr Graveson acted in an abusive and threatening manner toward Peter Parker (Manager Mansfield DC). The specific alleged behaviour was that:

● As you approached the Delivery Managers Office with another staff member you were heard to say “well we all might be going home soon.”
● You then approached Mr Parker in his office and stated in a loud voice “this is bullshit” and proceeded to rip up a Warning Counselling letter, in front of Mr Parker that had been provided to another staff member earlier.
● You became aggressive continually yelling “this is fucking bullshit and there will be further action over this.”
● When Mr Parker attempted to ask you to stop yelling you interrupted, took a few steps toward Mr Parker (who was seated), pointed your finger at him yelling in a threatening manner “What are you going to do.... What are you going to do.”

[57] A number of statements and statutory declarations were provided to the Australia Post manager who investigated the allegations against Mr Graveson. They were not all available to the Commission for cross examination. The CEPU was particularly critical of the way in which the investigating officer Mr Fairgrieve discounted a number of the Statements made by PDOs but accepted the veracity of Statements made by others supporting Mr Parker including some who had not been witnesses to the incident. For reasons that will become apparent, it is not necessary to have regard to these matters.

Consideration of the evidence concerning the incident involving Mr Graveson on 7 November 2012.

[58] It is accepted that Mr Graveson and a number of other employees went to Mr Parker’s office to protest at the Warning Counselling letter being issued to Mr Johnson. It is also accepted that Mr Graveson “approached Mr Parker in his office and stated in a loud voice “this is bullshit” and proceeded to rip up a Warning Counselling letter, in front of Mr Parker”. It is accepted that the employees involved, including Mr Graveson, used loud voices. Mr Graveson also agreed that at some stage(s) in the meeting he said to Mr Parker that there would be further action over this.

[59] I found Mr Graveson’s fellow delegate, Mr Miller, to be a consistent and credible witness. Mr Miller says that he approached the office with Mr Graveson and that he did not hear Mr Graveson say the words “well we all might be going home soon.” Furthermore, Mr Miller says that if the words had been said he would have heard them. Mr Miller says he was in the office throughout the meeting and that Mr Graveson did not say “this is fucking bullshit and there will be further action over this.” Finally Mr Miller says that:

“At one point Paul came back in to the meeting and walked past me. Mr Parker was seated on the other side of the desk. I did not see deliberate stepping towards Mr Parker. I did not see Paul point a finger. Paul was not yelling in a threatening manner. I think Paul said “what are you going to do about this” referring to the letter.” 18

[60] Mr Parker gave evidence that he was concerned that Mr Graveson might hit him, that Mr Graveson tore up the Warning Counselling letter in his face, and that Mr Graveson leaned over at him and aggressively pointed his finger at him. The four PDO witnesses do not support this account of the events although Mr McDonald accepts that he was not present for the first part of the meeting.

[61] The four PDO witnesses also deny that Mr Graveson was yelling and used the swear word attributed to him.

[62] I inspected the location of the incident. The office is approximately 4 meters square. There is only about one meter in front of the desk which also has two chairs immediately in front of it. There is quite a bit of furniture in the office including various shelves in addition to the desk and the chairs which reduces the available space in which visitors can stand. The desk is on the right hand side of the office so that there is a little more space in the area in front of the door than there is in front of the desk. There is a small window between Mr Parker’s office and the office next door. It is not in contention that another manager was in the office next door during the incident.

[63] Having considered all of the evidence I am satisfied that Mr Graveson did say words to the effect “what are you going to do about this”.

[64] I am satisfied that given the confined space and the uncontested fact that there were at least 6 and up to 9 persons in the office or in the entrance to the office at various times during the incident the situation was generally confronting for Mr Parker. All of the persons present other than Mr Parker were upset about the threatened discipline of Mr Johnson. It is accepted that the persons concerned, including Mr Graveson, were speaking in loud voices. There is only one door in the office and therefore Mr Parker could not exit the situation without walking through the crowd of employees or without asking the employees to leave. It is accepted that Mr Parker did not ask the employees to leave.

[65] I am satisfied that when Mr Graveson stepped past Mr Miller it would have appeared to Mr Parker that his personal space was being invaded even though there would still have been some distance between Mr Parker and Mr Graveson given the size and shape of the desk.

[66] I am satisfied, having regard to the confined space, the number of persons present and the level of emotion, that persons, including Mr Graveson, speaking in a loud voice could reasonably be perceived by Mr Parker as yelling. Mr Miller gave evidence that Mr Parker asked everyone to stop yelling. Mr Miller was of the view that: “we were all loud but it was not yelling in my view”. 19 The evidence of Mr Miller certainly confirms that it was Mr Parker’s perception at the time that those involved in the confrontation were yelling.

[67] I am not satisfied that Mr Graveson said the words “well we all might be going home soon.” It was a noisy environment and Mr Parker was inside an office. I am not convinced that such a comment would have been heard. Even if I am wrong about that matter the alleged one off statement in the context of the overall situation is not a matter which could reasonably form the basis for disciplinary action.

[68] Mr Parker accepted that the Warning Counselling letter was not in fact torn up in the vicinity of his face. 20 If Mr Graveson leaned forward then I am not satisfied having regard to the evidence of the others present and the layout of the room that he was leaning over Mr Parker. Having considered all of the evidence I accept that Mr Graveson leaned forward but in doing so he was not leaning directly over Mr Parker.

[69] Mr Parker demonstrated during the proceedings the nature of the alleged pointing. It was a quite pronounced gesture and I agree with Mr Parker that others in the room would have been likely to see it. The other witnesses all gave evidence that they did not observe pointing. It is possible that the view of some of the witnesses might have been obscured. However, given Mr Miller’s description of his location and the location of Mr Graveson I consider it likely that Mr Miller would have been able to see the gesture. However, for reasons that will be become clear it is not necessary to determine whether or not Mr Graveson pointed.

[70] The other witnesses present other than Mr Parker deny that Mr Graveson swore. Given the number of persons involved and the emotional nature of the situation I consider that it is possible that various participants, possibly including Mr Graveson, swore and that memories about who said what have become confused. A number of the witnesses for the CEPU referred to earlier meetings involving Mr Parker which had been loud and to situations where swearing occurred including alleged swearing by Mr Parker. I am unable to conclude on the balance of probabilities that Mr Graveson swore. In any case I am not satisfied that swearing was a major aspect of the set of behaviours which Mr Parker found intimidatory.

[71] The evidence suggests that Mr Graveson said “this is bullshit” on more than one occasion. Mr Graveson, Mr Parker, Mr Miller and Mr Johnson all agreed that it was first said at the beginning of the confrontation when the warning letter was ripped up. Mr McDonald was not near the office when Mr Graveson first went to the office and therefore he did not see the warning counselling letter being torn up. However, Mr McDonald does give evidence that he heard Mr Graveson say “this is bullshit”. I am satisfied that Mr Graveson said “this is bullshit” or words to that effect on more than one occasion during the confrontation.

[72] Even if I accept the evidence of Mr Graveson and the other PDOs that they did not perceive that Mr Graveson was aggressive or intimidatory I am satisfied that Mr Parker reasonably perceived the situation in that way. Having regard to all of the circumstances and the evidence of Mr Graveson and the other PDO witnesses I am not satisfied that Mr Graveson ever intended harm to Mr Parker but I am satisfied that his actions led to Mr Parker feeling intimidated with reasonable cause.

[73] In my view the actions of Mr Graveson in tearing up the letter and stating in a loud voice on more than one occasion “this is bullshit” and then later on demanding to know “what are you going to do about this” were wilful actions. I am satisfied that the parties present understood that “this” was a reference to the warning counselling of Mr Johnson. I am also satisfied that Mr Graveson moved past Mr Miller closer to Mr Parker when he demanded to know what Mr Parker was going to do about the situation. This was also a wilful action even though I am satisfied that it was not deliberately designed to be intimidatory. Mr Graveson’s perception of the situation and the perception of Mr Parker were understandably dramatically different. From Mr Graveson’s perspective he left the room on two occasions during the confrontation to contact the union office and therefore he was not engaged in conduct directed to Mr Parker through a considerable part of the confrontation. From Mr Parker’s perspective he was trapped in a room being confronted by angry workers and the stressful situation continued whilst Mr Graveson was absent. It was reasonable for Mr Parker to perceive Mr Graveson’s return and moving closer to him and demanding to know what he was going to do about this as more intimidatory and aggressive in that context.

[74] The workers involved were understandably upset. They perceived what was happening to Mr Johnson as a substantial injustice. No doubt this was amplified because the workers concerned had “all been in it together” in saying that they did not want to work past 2.30pm. Individually the workers would have perceived their behaviour, and the behaviour of Mr Graveson, as a forceful protest against unjust management action. Individually the behaviour of each of the workers may have been relatively unremarkable however taken together they created an environment where it was reasonable for Mr Parker to feel that Mr Graveson’s actions were aggressive and intimidatory. The behaviour of Mr Graveson in this situation was “likely to cause fear or reduce the sense of safety and security of” Mr Parker. A sense of safety and security can be significantly reduced by intimidatory behaviour even when there is no reasonable basis for concluding that a person is about to be physically assaulted.

[75] I consider that a union delegate has a responsibility in dispute resolution situations. Mr Graveson was accepting that role in representing Mr Johnson. Mr Graveson therefore had a responsibility to ensure that the meeting he had initiated on behalf of Mr Johnson was conducted appropriately. I have no doubt that the behaviour and presence of others contributed to the intimidatory nature of the meeting but Mr Graveson had a responsibility to attempt to intervene. Mr Graveson could have asked others to leave or he could have asked for an adjournment.

[76] Mr Graveson was required by Australia Post to see a psychologist. The psychologist provided a report concerning his meeting with Mr Graveson on 30 November 2012. The psychologist reported that Mr Graveson had told him about the 7 November incident and that:

“He stated that he did not believe there was any behaviours he would consider to be inappropriate on his behalf within the confines of that meeting. He does however state that he is passionate about his position as a union representative and admits that this passion may have been perceived as intimidation or coercion but not as a low grade of violence.” 21

[77] This report suggests that Mr Graveson understood that his behaviour could have been reasonably perceived by Mr Parker as intimidation or coercion.

[78] Mr Parker and Australia Post accepted that prior to the incident Mr Graveson had taken initiatives to help Mr Parker reduce the level of hostility and miscommunication in team meetings at the workplace. Mr Graveson also made a number of other contributions to improve the workplace and to assist others. Having considered all of the evidence and having observed Mr Graveson in the witness box I am satisfied that he did not intend to intimidate Mr Parker. However, during the proceedings Mr Graveson in responding to questions became confused and contradicted earlier statements on several occasions. 22 I am satisfied that Mr Graveson was endeavouring to be truthful and helpful but became confused and emotional in a rush to explain himself and ensure that others understood the situation. I conclude that it is possible that Mr Graveson does not always accurately perceive the effect of his own behaviour on others.

Conclusions concerning the disciplinary action against Mr Graveson.

[79] Having found that Mr Graveson’s behaviour was intimidatory and that the behaviour was wilful and constituted a breach of Australia Post’s violence policy, it is necessary to consider whether or not that conduct was serious misconduct.

[80] Mr Parker did not ask Mr Graveson or the other employees to leave his office. The manager in the next office heard the lengthy confrontation which was occurring but was not sufficiently alarmed at the situation to look through the window between the two offices to observe what was happening or to intervene in the situation. No verbal or physical threats were made. Mr Graveson was a long serving employee with a good employment record and there had been no previous adverse incidents.

[81] In determining whether or not the conduct constitutes serious misconduct it is appropriate to have regard to the common definition of serious misconduct and the definition in the Fair Work Regulations (Regulation 1.07) in particular. A key element of that definition and the usual approach to this question is that the conduct is not serious misconduct if in the circumstances the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable. Under Clause 36 of the Agreement potential outcomes from a first offence which is alleged to be serious misconduct can include termination or compulsory transfer.

[82] I have already referred to the fact that the Australia Post violence policy makes it clear that a breach of the policy means that an employee’s right to continued employment in Australia Post will be reviewed. This suggests that it is the intention of the policy that a case of intimidating behaviour which meets the definition under the Violence Policy may well constitute serious misconduct. However, the policy notes that “depending upon the facts and circumstances and seriousness of the alleged breach” this may lead to an Inquiry and may lead to suspension. In other words whether or not a breach of level 5 of the violence policy (intimidation) is serious misconduct and meets the exemption in Clause 36.2 in respect to first offences will depend upon the facts, circumstances and the seriousness of the breach.

[83] Given I am satisfied that there was a breach of the violence policy it was open to Australia Post to transfer Mr Graveson depending upon the facts and circumstances and seriousness of the breach. Australia Post reached the conclusion that the behaviour was sufficiently serious so as to amount to serious misconduct in all of the circumstances. It was then open to Australia Post to impose the penalty of compulsory transfer. Australia Post was of the view that this was the appropriate penalty having considered and rejected the possibility of the lesser penalty of warning or counselling and the greater penalty of termination.

[84] I am satisfied that the breach of the violence policy and the Ethics Policy was a serious matter and that a disciplinary outcome was appropriate notwithstanding that it was a first offence and the otherwise good employment record of Mr Graveson. In my view it is a difficult matter of judgment to decide whether or not the conduct is appropriately described as serious misconduct. Based upon what was before me I might well have come to a different conclusion to that reached by Australia Post. I may have also reached a different conclusion about the appropriate penalty.

[85] However, in the circumstances of this case I am being asked to resolve a dispute about the disciplinary penalty imposed by Australia Post. In resolving that dispute I would not have hesitated to interfere with the conclusions reached by Australia Post if I had been satisfied that Mr Graveson’s behaviour was not intimidatory and in breach of the Australia Post violence policy. If that had been the case then Australia Post would not have been able to impose the penalty that it did under the Agreement. Similarly had Australia Post imposed a more serious penalty (e.g. dismissal) I would have found that the outcome was clearly harsh, unjust and unreasonable and inconsistent with the Agreement. However, I have found that Mr Graveson’s behaviour was intimidatory and in breach of Australia Post’s violence policy. In that situation the question of whether or not the conduct was serious misconduct and whether or not the penalty imposed was consistent with the Agreement and whether or not it was harsh, unjust or unreasonable is a question of finer judgement having regard to all the circumstances.

[86] The penalty has been imposed on Mr Graveson. The penalty has caused him inconvenience. However, Australia Post have made it clear that the matter is over and it is open to Mr Graveson to now apply to return to the Mansfield depot if he wishes.

[87] Therefore after considering all of the circumstances I do not consider that it is appropriate to make any determination to interfere with the disciplinary outcome imposed on Mr Graveson. This decision settles the dispute in respect to Mr Graveson.

Determination in respect to the disciplinary outcomes as they affect Mr Johnson and Mr McDonald.

[88] I have found earlier that the disciplinary action taken against Mr Johnson and Mr McDonald was not consistent with the Agreement and was inconsistent with Clause 36.5 of the Agreement: “In exercising these rights, Australia Post shall not take action which is harsh, unjust or unreasonable.” The CEPU seeks the following determination:

● That all reports etc relating to the disciplinary action be removed from the Australia Post files.
● That Australia Post write to both employees expressing apology for the actions of various managers and acknowledge that they had a right to refuse overtime in the circumstances.
● That Australia Post write to all employees at Mansfield and advise them that they only have an obligation to work reasonable overtime. Any refusal after that will not subject them to disciplinary action.

[89] Australia Post argue that no action is necessary because the two employees have successfully completed the follow up process associated with the warning counselling. There have been no issues of concern arising from these follow up meetings.

[90] I am satisfied that it would be unjust to leave the warning counselling on the records of the two employees. I consider that the Agreement and my decision in this matter make it unnecessary to make any determination beyond requiring that Australia Post remove all records relating to the disciplinary action from the files of Mr Johnson and Mr McDonald and treat the two employees as if the warning counselling had not occurred. I determine that Australia Post should remove all records relating to the disciplinary action arising from the incident of 2 November 2012 from the files of Mr Johnson and Mr McDonald and treat the two employees as if the warning counselling had not occurred.

COMMISSIONER

Appearances:

Mr D Dwyer appeared for the CEPU.

Mr D Williams appeared for Australia Post.

Hearing details:

2014

Brisbane

April 1 and 2

1 Exhibit Australia Post 4, Attachment D11 and D12.

2 Exhibit Australia Post 4, at para 20.

3 PN1419 to PN1424.

4 See for example Exhibit CEPU 4, at para 6.

5 Exhibit Australia Post 2, at para 23.

6 PN1382 to PN1384.

7 Exhibit CEPU 4, at para 7.

8 Exhibit CEPU 2, at para 8.

9 Exhibit CEPU 1, at paras 8 and 9.

10 Exhibit CEPU 3, at para 15.

11 Exhibit Australia Post 4, Attachment DF6.

12 See the records of the counselling interviews at Exhibit Australia Post 4, Attachments DF12 and DF13.

13 Exhibit Australia Post 4, Attachment DF3 at 6.2.9 (a).

14 Exhibit Australia Post 4, Attachment DF3 at 6.2.9(b).

15 Exhibit Australia Post 4, Attachment DF12.

16 Exhibit Australia Post 4, Attachment DF13.

17 Australia Post Violence Policy, Exhibit Australia Post 4, Attachment DF4.

18 Exhibit CEPU 4, at para 20.

19 Exhibit CEPU 4, at para 20.

20 PN1443.

21 Exhibit CEPU 3, Attachment 10.

22 PN695, PN703 to PN706, PN725 to PNPN752 and PN759 to PN764.

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