Edwin James Rosewarne and AWU-FIME Amalgamated Union v BHP (JLA) Pty Ltd

[1995] IRCA 548

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2932 of 1995

B E T W E E N :

EDWIN JAMES ROSEWARNE &
AWU-FIME AMALGAMATED UNION
Applicants

AND

BHP (JLA) PTY LTD
Respondent

Before:       Judicial Registrar Fleming
Place:         Melbourne
Date:          2 October 1995

REASONS FOR JUDGMENT

Findings of Fact
Mr Rosewarne (the Firstnamed Applicant) who is 59 years old was employed as a Security Officer at the company’s Westernport Works which are located at Hastings.  His employment commenced in March 1989. He was represented by AWU-FIME Amalgamated Union (TAPS division) (the second named applicant).

The 1993 dismissal
In August 1993 Mr Rosewarne’s employment was terminated for misconduct.  Mr Rosewarne’s evidence to the Court was that he reported an incident of misappropriations at Westernport to Mr Loton’s (Chairman of BHP) office in Melbourne.  As a result of the report, an audit was conducted at Westernport.  Ms Gillis (nee Platt) for the Respondent agreed that an audit was conducted in 1993 as a result of the Mr Rosewarne’s report.  The report pointed to a lack of standard operation procedures in certain places which could be open to abuse, but no actual abuse was found and new procedures were introduced.  Although it was suggested by Mr Rosewarne that his dismissal in 1993 related to his report to Mr Loton’s office, I prefer the evidence of Ms Gillis that the interview she had with the Mr Rosewarne on 3 August 1993 was a performance review, she was unaware of the audit at the interview on 3 August 1993 and termination of Mr Rosewarne’s employment was not contemplated.

Mr Rosewarne’s employment was terminated by the Respondent in August 1993 as a result of his failure to comply with lawful directions.  I accept Ms Gillis’ evidence, which is not contested by the Applicant, that
Mr Rosewarne was dismissed on 3 August 1993 after he was called to the office to discuss issue raising procedure and his refusal to obey instructions by way of reports about allegations he raised.  Mr Rosewarne walked out of that meeting.  Mr Clapp, the Human Resources Manager at the time, had asked Mr Rosewarne to remain at the meeting but Mr Rosewarne refused and, as a result, his employment was terminated.
Mr Rosewarne was reinstated after very lengthy discussions between
Ms Gillis and Mr Stewart of the union and the reinstatement agreement was drawn up and attached to it a personal issue raising procedure specific to the reinstatement of Mr Rosewarne (Exhibit A1).  The agreement was signed by Mr Rosewarne and the union representatives and the Respondent.  Mr Rosewarne was to be on probation for three months and the issue raising procedure as it related to Mr Rosewarne was to remain on foot indefinitely. 

Circumstances Leading up to Termination in May 1995
Mr Rosewarne said that in December 1994 “there was talk” that the Chief Security Officer (Mr Franks) was participating in an off campus course at Deakin University and was experiencing difficulties in the course.  Mr Rosewarne reported this to Mr Laity, his crew supervisor. 
Mr Laity gave sworn evidence that Mr Rosewarne had talked to him about the alleged cheating but that Mr Laity said “you can’t do anything unless we’ve got evidence and as no evidence was forthcoming I could not do anything about it”.  I accept the evidence of Mr Laity that as Mr Rosewarne did not provide to him evidence to prove the allegations he did not investigate or report the complaint by Mr Rosewarne to any higher authority.

At Mr Rosewarne’s request Mr Ploudias prepared a written statement dated 23 April 1995.  Prior to this statement all Mr Rosewarne had to rely on was the talk amongst the security staff.  Mr Ploudias did not ask Mr Rosewarne to pursue the matter on his behalf or at all.  Mr Ploudias said he just told Mr Rosewarne because “[Mr Rosewarne] is a person with high integrity that I trust.”

Mr Rosewarne decided to pursue the matter and when Mr Laity did not take the matter any further Mr Rosewarne took the matter into his own hands.

On Friday 7 April 1995 at about 3.10pm Mr Noel Gibson telephoned to the security gate for a car and he spoke to Mr Rosewarne.  Mr Rosewarne took this opportunity to raise the matters with Mr Noel Gibson.  This was the first time the company became aware of the issues raised by Mr Rosewarne.  Mr Rosewarne had not actively sought out Mr Noel Gibson to make a formal report.  Mr Noel Gibson’s response was that the allegation was a serious one and he would want to raise the matter with Mr Andrew Gibson who was on leave.  Mr Noel Gibson commented that the matter should be dealt with internally but Mr Rosewarne indicated that he believed nothing would be done and that he preferred to deal with the “college” directly.

On Monday 10 April 1995 at 4.00pm Ms Vinning from Deakin University phoned Mr Noel Gibson and advised that Mr Rosewarne had telephoned her and alleged cheating by a student whom he did not name and made an appointment to see her.  Mr Noel Gibson requested Ms Vinning to postpone the meeting until Mr Andrew Gibson had returned from leave.

Ms Vinning then telephoned Mr Rosewarne to cancel the appointment.  I accept that Ms Vinning told Mr Rosewarne that the company had asked her for an opportunity to pursue the matter internally first.  Mr Rosewarne asked her the name of her superior to which she responded Mr Orton and Mr Rosewarne telephone Mr Orton to make an appointment to discuss the issue.  Mr Orton telephoned Mr Noel Gibson on 12 April 1995 to advise that Mr Rosewarne had telephoned him.  Mr Rosewarne identified the student who was cheating as his boss however he did not name Mr Franks to Mr Orton but it was clear to whom he referred.

On 19 April 1995 when Mr Andrew Gibson had returned to work he telephoned Mr Rosewarne and asked him to detail the allegations in writing but Mr Rosewarne refused to do so.  Mr Rosewarne sought permission from Mr Andrew Gibson to interview Mr Franks and if permission was refused Mr Rosewarne said he would “escalate” the matter externally.  Understandably Mr Andrew Gibson refused permission to Mr Rosewarne to interview Mr Franks and Mr Rosewarne’s attitude on this occasion is to say the least provocative.

Mr Andrew Gibson sent a letter to Mr Rosewarne (Exhibit R3) again asking Mr Rosewarne to provide information that would justify a full investigation.  Mr Rosewarne declined to do so.

At the meeting held on 24 April 1995 Mr Johnson (Human Resources Manager), Mr Magee, Mr Rosewarne and Ms Manning from the union were in attendance.  Mr Rosewarne sought to tape the discussion and was given permission to do so.  (No tape recording was provided to this Court by the Applicant to refute any of the evidence of the Respondent.)  Mr Johnson gave a chronology of events and told Mr Rosewarne “it is the company’s view that Mr Rosewarne’s conduct in progressing the issue is in direct contravention of his terms of reinstatement.”

Mr Johnson gave Mr Rosewarne a final opportunity at this meeting to provide details as to the allegations he made so that the company could take appropriate action.  Mr Rosewarne said that until he had the opportunity to speak to Ms Manning in private he would not release any information and the reason he gave was that approximately two years ago he raised allegations about a fraud and he was reluctant to put himself in that position again.  Mr Rosewarne had the opportunity of speaking to Ms Manning in private at the close of the meeting (Exhibit R4) but he declined to co-operate with Messrs Johnson and Magee.  Mr Rosewarne refused to acknowledge that this meeting was the appropriate forum to discuss the issue and he alluded to another more appropriate forum.  At this meeting Mr Rosewarne was stood by on pay until the company finalised its investigations.

A further meeting was arranged on 28 April 1995 between Mr Benjamin, Works Manager and Mr Rosewarne but Mr Rosewarne would not attend the meeting if witnesses were to be present.  Mr Rosewarne sought to meet with Mr Benjamin on a one to one basis and permission was refused.  Mr Rosewarne then sought to avoid the meeting by making an excuse.  Mr Johnson tried to accommodate Mr Rosewarne who declined any assistance and a subsequent meeting was arranged for 1 May 1995.

At the meeting on 1 May 1995 Mr Rosewarne was again asked to substantiate his allegations.  He refused to do so.  He sought permission to interview Mr Franks and for obvious reasons permission was refused.  Mr Rosewarne insisted on taping the discussion even though he was requested by Mr Benjamin not to do so.  In view of his refusal to co-operate Mr Rosewarne was advised that his actions could result in serious disciplinary action being taken including the possibility of dismissal.  Mr Rosewarne was invited to reconsider his position however after a short recess Ms Manning advised that Mr Rosewarne would not resile from his position and he was stood by on pay for a further period.  A further meeting was to occur to give Mr Rosewarne time to consider his position and take advice and to give the Respondent a chance to complete its investigation.

At the meeting on 8 May 1995 which was attended by Mr Rosewarne, Ms Manning, Messrs Johnson and Magee.  A chronology of events was tabled and Mr Rosewarne was given a clear message that his conduct as detailed in Exhibit A4 in relation to raising the allegation against Mr Franks and his subsequent conduct resulted in the Respondent advising Mr Rosewarne that termination of his employment with notice was a serious possibility.  Mr Johnson proposed that the meeting be adjourned in order to give Mr Rosewarne a final opportunity to respond.  I accept the contents of Exhibit A4 as being an accurate record of what occurred at the meeting on 8 May 1995.  Mr Rosewarne taped the meeting and has not provided any evidence to the contrary, accordingly Exhibit A4 accurately sets out the Respondent’s reasons for proposing to terminate the employment of Mr Rosewarne subject to his response.

On 15 May 1995 Deakin University provided its report to Mr Andrew Gibson and on the same day wrote to Mr Rosewarne advising him that the result of its investigation was that it completely exonerated Mr Franks.  Significant to this Court is Mr Rosewarne’s refusal to accept the findings of the Deakin investigation.

The next meeting was on 16 May 1995 and was attended by Mr Rosewarne, Mr Frost, Ms Manning, Ms Gilles, Messrs Johnson and McGee.  After lengthy discussions Mr Johnson advised Mr Frost that unless evidence of Mr Rosewarne’s allegations could be provided to the Respondent then termination of employment would result. No evidence was provided.  Further discussion ensued and then there was a recess for the parties to consider their position.  Upon resuming Mr Johnson advised that Mr Rosewarne’s conduct warranted dismissal for the reasons stated in the meeting on 8 May 1995.  Mr Rosewarne’s employment was terminated with 5 weeks payment in lieu of notice and he was sent a letter advising of termination of employment.

S170 DE(1) & (2)
There is no doubt in my mind that the Respondent has provided Mr Rosewarne with a valid reason as set out in Exhibit A4.  Mr Rosewarne breached the terms of his employment contract.  He did not comply with the general issue raising procedure as set out in the Security Operations Manual and he also failed to comply with the specific issue raising procedure that was designed especially for him by Ms Gillies in 1993.

Mr Frost and Ms Manning for the union sought to persuade the Court that the Issue Raising Procedure designed for Mr Rosewarne in 1993 in some way discriminated against him.  I find the reverse is true.  Mr Rosewarne was given a specially designed procedure which granted him a more direct route to senior managers if he sought to report an incident.

Mr Rosewarne made serious allegations against a senior member of staff and he chose not to follow the correct procedure but to take the matter into his own hands.  Given Mr Rosewarne’s history as a warrant officer in RAAF it is fair to say that he would appreciate better than most the importance of following correct procedure and it is surprising that he has disregarded both general procedure as set out in the Security Operations Manual and the specific Issue Raising Procedure as it related to him.  Mr Rosewarne’s investigation into the alleged cheating consisted of only one statement that of Mr Ploudias and, while I accept Mr Ploudias’ evidence, it is neither persuasive nor conclusive evidence to support Mr Rosewarne’s allegation.  It is significant that Mr Rosewarne only sought the statement of Mr Ploudias after he had spoken to Deakin University and Messrs Gibson.

Mr Rosewarne’s exasperating and sustained refusal to provide any information to the Respondent was obstructive and resulted in a protracted investigation the result of which exonerated Mr Franks.
S170DC
Ms Manning for the Respondent submitted that “procedurally we cannot argue that the company was unfair in the way the company conducted its affairs.”  I must agree with Ms Manning that the Respondent has done all it can do to accord Mr Rosewarne with every opportunity to discuss the issue and to respond.  Mr Rosewarne, aptly represented by his union, has chosen not to respond to the allegations.  Mr Rosewarne has at all times been advised of the consequences of his actions and he has chosen to remain silent.  I find that the Respondent has done all it can do to enquire into Mr Rosewarne’s allegations without any assistance from him and has given him every opportunity.  I find that Mr Rosewarne’s conduct throughout the months leading up to his dismissal has been unreasonable in all the circumstances and accordingly I dismiss the application.  

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application is dismissed.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:            
Dated:  2 October 1995

Representative Union Applicant:     Jane Manning of
  AWU-FIME Amalgamated Union   - Victorian Branch (Taps Branch).  

Solicitor for the Respondent:           Helen McKenzie of
  Blake Dawson Waldron.

Date of hearing:  17, 18 August & 11 September,   1995

Date of judgment:  2 October 1995

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID TERMINATION - HARSH UNJUST AND UNREASONABLE

Industrial Relations Act 1988 s. 170DC, s 170DE

EDWIN JAMES ROSEWARNE & AWU-FIME AMALGAMATED UNION  v BHP (JLA) PTY LTD

No. VI 2932 of 1995

Before:  Judicial Registrar Fleming
Place:  Melbourne
Date:  2 October 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2932 of 1995

B E T W E E N :

EDWIN JAMES ROSEWARNE &
AWU-FIME AMALGAMATED UNION
         Applicant

AND

BHP (JLA) PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Fleming  2 October 1995

THE COURT ORDERS:

1. That the application is dismissed.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.