Fahim Ahmadyar v Visy Board Pty Ltd T/A Visy Board
[2019] FWC 6083
•17 SEPTEMBER 2019
| [2019] FWC 6083 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fahim Ahmadyar
v
Visy Board Pty Ltd T/A Visy Board
(U2017/9326)
Ulben Rustemovski
v
Visy Board Pty Ltd T/A Visy Board
(U2017/9857)
COMMISSIONER BISSETT | MELBOURNE, 17 SEPTEMBER 2019 |
Application for an unfair dismissal remedy.
INTRODUCTION
[1] On Thursday 20 July 2017 Mr Veselin (Vic) Filipendin, then Operations Manager of the Visy Board Pty Ltd T/A Visy Board (Visy) cardboard manufacturing plant at Dandenong, conducted briefings of Visy employees at the site on changes to Visy’s drug and alcohol policy (policy). Two briefings were held on 20 July 2017– one at 4:00pm for employees on the red team who were just finishing their day shift and another at 4:30pm for members on the blue team who were just about to commence their afternoon shift – in relation to the policy.
[2] The conduct, tone and what was said by Mr Filipendin is disputed. The flow on effects of those meetings however have been felt long and wide leading to a number of proceedings including this hearing for relief from unfair dismissal by Mr Fahim Ahmadyar and Mr Ulben (Beni) Rustomevski (the Applicants).
[3] The Applicants were delegates for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (AMWU or union). Both worked on the red team who, in the week of the briefing were on day shift and in the week following the briefing, rotated onto the evening shift.
[4] Work at the Visy plant is carried out in two shifts. The day shift commences at 6:00am each day and ends at 1:30pm. Overtime is regularly worked for three hours at the conclusion of ordinary hours, finishing at 4:30pm.
[5] The afternoon shift commences at 4:30pm and continues until midnight. Three hours of overtime is also regularly worked at the conclusion of the afternoon shift ordinary hours.
[6] The plant operates between 20 and 22 hours per day, six days a week. Maintenance is carried out on Sundays.
[7] In the week following the briefings on the policy by Mr Filipendin commencing 24 July 2017 a number of employees indicated on each day that they did not want to work the overtime offered and left at the end of their ordinary hours. On 27 July 2017 the Applicants were each given a letter in which a number of allegations were put to them. Both Applicants were stood down with pay on that day while an investigation was undertaken. Those allegations were:
I. You organized employees at the Visy Board Dandenong site collectively to refuse and/or not to work scheduled planned overtime on successive afternoon and day shifts, from the afternoon shift of Monday 24 July 2017 to the day shift of Wednesday 26 July 2017 (inclusive).
II. In the course of discussions with Veselin Filipendin, Operations Manager during the evening of Monday 24 July 2017 as to the reasons for the collective refusal and/or failure to work overtime that day, you explained that the reason was due to dissatisfaction with the Visy Drug and Alcohol policy. You further advised him that “People wanted the Policy to be softened a bit”, and that you requested Visy management to change the Policy “to at least two chances if caught”.
Mr Filipendin advised you to raise your concerns through the appropriate levels and that he would provide a response to your concerns by the next day. Despite this you did not wait for Mr Filipendin’s response to your concerns, and instead continued to organise employees as per the first allegation above.
III. On Tuesday 25 July 2017, you meet [sic] with Mr Filipendin and Mr Jamie Beaton – State General Manager Visy Board. You were informed by Mr Beaton that Visy’s position on the Policy would not change.
Mr Beaton also informed you that in Visy’s view the current events constituted unprotected industrial action, and he requested you and all employees to work as normal, including the overtime that had been scheduled and committed to by employees.
You did not comply with his request. You continued to organise employees as per the first allegation above.
IV. That on Wednesday 26 July 2017 you were informed that Visy and the AMWU had agreed on an undertaking by the AMWU which would cease any unprotected industrial action, and specifically the unprotected industrial action which was planned for 1.30pm Wednesday 26 July 2017. Despite this you continued to organise employees to cease work at 1.30pm and not to perform committed and scheduled overtime through to 3.30pm. 1
[8] On 28 July 2017 Mr Ahmadyar attended an investigation meeting. He attended a second meeting on 3 August 2017 and then attended a further meeting on 4 August 2017 where he was advised that his employment was terminated.
[9] Mr Rustemovski went on annual leave on 28 July 2017 and travelled to North America. He was interviewed as part of the investigation on his return on 22 August 2017. His employment was terminated on 23 August 2017.
[10] Both Applicants were dismissed in relation to the same allegations. The evidence has been considered as a whole although findings in relation to each Applicant have been separately made where necessary. Where findings or statements are made in this decision in relation to “the Applicants” the finding or statement applies equally to each Applicant as if it was made individually about each Applicant. Where the evidence or findings is in relation to only one of the Applicants this is made clear.
[11] Each of the Applicants was dismissed for the same reason. The letter of termination given to each Applicant said:
…We have conducted an extensive investigation process including an interview with you and provided you the opportunity to respond to the allegations. You have also had the opportunity for support and representation through this process, including being accompanied by a lawyer in your interview. You have used that opportunity to let us have your responses.
The investigation has also included discussions with a number of others from the workplace.
Your denials of involvement in the organisation of this industrial action as alleged were inconsistent with the accounts we received from other employees who witnessed your conduct at the relevant times.
After careful consideration of all of the information available to us, including your denials of the allegations, we have determined that the allegations are made out… 2
[12] Mr Rustemovski commenced work with Visy in 1996, first through a labour hire company and then, 13 months later, as a permanent employee. Apart from a year working at CSR prior to commencing with Visy he has not worked anywhere else. He is, at the time of the hearing, 43 years old.
[13] Mr Rustemovski was a trolley cart operator at Visy. His cart runs alongside the corrugator (the “Corry”). He joined the AMWU soon after he became a permanent employee and became an AMWU delegate for the red team in about 2009. As a delegate he would attend to union duties – at times this was not much but at other times, such as during bargaining, he could spend substantial time away from the workplace.
[14] Mr Ahmadyar was born in Afghanistan, lived in Pakistan for a period of time and came to Australia in about 1995. Within a few months of arriving in Melbourne he got a job at Visy, first at Noble Park and then, when that site closed, at Dandenong. He has not worked elsewhere. He is, at the time of the hearing, 48 years old.
[15] Mr Ahmadyar is also a trolley cart operator but in the converting section of the plant where boxes are made.
[16] Mr Ahmadyar has been a member of the AMWU since about 2004 and has been a delegate on the red crew for 10 years.
[17] Prior to the hearing of the applications I granted permission to both parties to be represented by a lawyer. I was satisfied that the matter was complex and that it could be dealt with more efficiently if permission was granted. The Applicants were represented by Mr Harding of Counsel and Visy by Ms Sweet of Counsel.
[18] The following witnesses gave evidence for the Applicants:
• Mr Fahim Ahmadyar;
• Mr Ulben Rustemovski;
• Mr Alan White;
• Mr Assllan Lumani;
• Mr Fajrim Dalipovski;
• Mr Fazzil Noureddine;
• Mr Glynn Cook;
• Mr John Ilianos;
• Mr Marcus Ragusa;
• Mr Mario Petta;
• Mr Milan Vukelic;
• Mr Roderick Baldassarini;
• Mr Soe Myint;
• Mr Michael Bull; and
• Mr Dusan Markovic
[19] A number of witnesses were called to give evidence by Visy. They were:
• Mr Shawn Kopel;
• Mr Jamie Beaton;
• Mr Ian Harmer;
• Mr Steve Attrill;
• Mr Sanj Thapliyal;
• Mr Veselin Filipendin;
• Mr Michael Ridolfi;
• Mr Daniel Petrecca;
• Mr Steve Walkeden;
• Mr Yongo Delfin;
• Mr Tom Jacobson;
• Mr Pat Tuyau;
• Mr Ali Yassin; and
• Ms Desi Wallace.
[20] In order to determine the application before me it is necessary for me to make a finding as to whether the conduct which formed the basis of the dismissal of the Applicants did, in fact, occur and if it, or some other conduct found to have occurred, provided a valid reason for the dismissal of each of them.
[21] It is not in dispute and I find that each of the Applicants is protected from unfair dismissal, the dismissals were not a redundancy and the Small Business Fair Dismissal Code has no application as Visy is not a small business.
[22] This being so the matter to decide is if the dismissal of the Applicants was harsh, unjust or unreasonable.
[23] Those matters necessary to be considered are set out in s.387 of the Fair Work Act 2009 (FW Act) and are considered later in this decision.
[24] The heart of this matter goes to the non-performance of overtime by workers at the Visy site on 24, 25 and 26 July 2017. There is some disagreement as to whether the action taken by the employees constituted industrial action – in a definitional sense – or not. In this decision I have generally used the phrase “non-performance of overtime” to describe the activity undertaken. I have, for reasons given below, not determined if the action was industrial action as defined in the FW Act or not.
SUBMISSIONS AND EVIDENCE
Submissions
[25] Mr Harding, for the Applicants, submitted that there is no direct evidence and no inference can be drawn that the Applicants were engaged in organising industrial action in the form of a ban on overtime or that the Applicants were engaged in organising the non-performance of overtime. Rather, he said that the non-performance of overtime was an individual reaction to the poor conduct of Mr Filipendin during meetings he conducted with employees on 20 July 2017 in relation to the revised policy.
[26] Mr Harding said that overtime was arranged by employees being advised on the prior Thursday that overtime would be available the following week. When the week came around employees were asked to confirm each day if they would be working overtime that day. He said that employees could accept or refuse to work the overtime. As such, he said, the non-working of overtime was no more than employees exercising the choice they had always been given. In circumstances where the working of overtime was an individual choice Mr Harding said that a decision to not work overtime was not industrial action as defined in the FW Act. 3 Mr Harding said that the working of overtime was governed as outlined above and it is therefore inapt to characterise the choice not to work as an overtime ban, limitation or restriction on the performance of work as industrial action as defined in the FW Act. As the Applicants were dismissed for organising industrial action, if I find that there was no industrial action I must find that there is no valid reason for the dismissal of the Applicants.
[27] Mr Harding submitted that the application to the Fair Work Commission (Commission) under s.418 of the FW Act and the proceedings in the Federal Court initiated by Visy were actions taken against the AMWU such that any outcome of those proceedings could not be taken as supporting any finding against the Applicants.
[28] Mr Harding said that the Applicants deny that they organised an overtime ban but that, even if the employees of Visy did engage in industrial action, there is no evidence that the Applicants engaged in specific intentional acts that amounted to organising or did so with the knowledge they were arranging industrial action.
[29] Mr Harding submitted that the obligation is on Visy to prove its case. Visy’s case, he said, is a generalised inferential case that the Applicants did organise the non-performance of overtime based on still images from CCTV; phone calls and text messages where the content is not known but where it is denied that the calls were organising a ban; and a meeting between the Applicants and Mr Michael Bull, the AMWU organiser responsible for the Dandenong Visy site, on 19 or 20 July 2017.
[30] Mr Harding reminded the Commission that the standard of proof is that set out in Briginshaw v Briginshaw and Another 4 and that what is required is evidence that persuades me that the conduct occurred.
[31] Ms Sweet for Visy submitted that Visy required that employees work overtime to enable it to meet its production targets. Ms Sweet said that Visy offered overtime hours to employees the week before the overtime was to be worked and that, at that time, employees committed to working the overtime. The overtime was then confirmed on the day. By refusing to work overtime that they had otherwise committed to the employees engaged in industrial action within the meaning of the FW Act as it was a “ban, limitation or restriction on the performance of work.” 5
[32] Ms Sweet said that the definition of “[o]rganising” can be found in a number of authorities but includes procuring or encouraging or lending encouragement or support to others to take industrial action. 6
[33] Ms Sweet submitted that there is a wealth of evidence that demonstrates a causal connection between the conduct of the Applicants and the overtime ban that justifies a finding that each of the Applicants organised industrial action in the form of the ban on overtime.
[34] Ms Sweet put that there is no requirement for the Commission to find that industrial action occurred as the matter before the Commission is not an application that requires such a finding. Rather, she said that it is enough that the Applicants “coordinated and marshalled and incited” employees to refuse collectively to work “offered hours” they had otherwise agreed to work. Even if it is not industrial action, the actions of the Applicants in co-ordinating the non-performance of overtime would still provide a valid reason for dismissal.
[35] Ms Sweet said that the dishonesty of each of the Applicants during the investigation undertaken by Visy either provides a further valid reason for each of the dismissals or is a relevant matter to consider in deciding that the dismissals were each not harsh, unjust or unreasonable.
How was overtime arranged?
[36] There was differing and conflicting evidence given by witnesses as to how overtime was arranged at the time of the dismissal of the Applicants.
[37] Mr Ian Harmer, General Manager – Industrial Relations, gave evidence that at the time he filed (one of) his affidavits in the Federal Court proceedings 7 he understood that overtime was locked in the Thursday the week prior to it being worked and that there was scheduled overtime attached to each shift.8 Mr Harmer agreed that he had no knowledge as to whether workers were asked on the day if they were going to work overtime that night. He said that the evidence in his affidavit was based on what Mr Filipendin had told him and he had no direct knowledge of the matter.
[38] Mr Filipendin said that the way overtime was arranged was that “the workers would be told in the week before that overtime for the following week would be required, but then supervisors would prepare a list on the day that overtime was required of those workers who were prepared to work it” 9 and the workers would either indicate that they were prepared to work or not.
[39] Mr Stephen Attrill, Plant Manager, said in his statement that “[o]rdinary hours and overtime are informally rostered on the Thursday of each week for the following week, based on the production forecasts for the following week and the relevant rotation of the Red and Blue teams. Supervisors then notify the relevant employees of the rostered overtime scheduled for the following week.” 10
[40] Mr Ali Yassin, Corrugator Supervisor, said that fewer people tend to work overtime on Mondays and Fridays than other days of the week, Mr Asllan Lumani, Machine Operator, and Mr Fajrim Dalipovski, Machine Operator, said that overtime is booked a week in advance and then confirmed on the day and Mr John Milianos, Machine Operator, said “it’s not normally a problem” if you did not work overtime.
[41] Mr Pat Tuyau, Production Supervisor, gave evidence that to book overtime “we would just go in and tell the guys – the week before, we would book it for 10 hours for the next week”. 11 Under cross-examination he clarified that overtime was notified the week prior to avoid any obligation to pay tea money. As a supervisor he would check around lunch time who was actually going to work overtime that day. Some people would say no and some would say yes.12
Consideration
[42] Whilst the evidence generally points to employees being advised on the Thursday beforehand that overtime would be offered the following week I am not convinced that this was a formal process whereby employees were asked to give a firm or binding commitment to work that overtime but rather an indication that they would. Further, I am satisfied that the process of advising employees that overtime would be worked the following week was enough notice to enable Visy to not be required to pay a meal allowance in relation to the overtime. 13
[43] On the basis of the evidence I am satisfied that employees were advised on the preceding Thursday that overtime would be available the following week based on production schedules but that the working of overtime was confirmed with individuals on the day it was to be worked. Employees could accept or reject the overtime with no consequence. I am also satisfied that there was no requirement to work overtime on any particular day - despite any general commitment having been given the previous week, evidenced by the reduction in people willing to work overtime on Mondays or Fridays.
[44] To the extent that Mr Daniel Petrecca, Supervisor, in an email of 25 July 2017 to Mr Filipendin, said that “Angelo and Pat on Thursday 20/7/17 when handing out pay slips booked factory staff for 10 hour [sic] for week commencing 24/7/17 all agreed to do the hours” 14 it is apparent that not all employees did agree to work overtime for the week beginning 24 July 2017. On Visy’s own figures only about half of the day shift and about 80% of the night shift committed to overtime15 to the extent required the week before hand.
[45] I am therefore satisfied that the working of overtime was regular but it was not compulsory that it be performed even though an employee may have indicated the week before a preparedness to do such overtime.
What occurred in the drug and alcohol policy briefing on 20 July 2017?
[46] Mr Filipendin said that the purpose of the two meetings with employees on 20 July 2017 was to answer any questions of employees of the proposed policy. He said that it was not the intention to go into the detail of the policy, “that came later” 16.
[47] Mr Filipendin said the meeting “did not go very well” and “went down hill” but that was not caused by him and he was not aggressive. He agreed that he raised his voice but said this was to be heard over the employees. He denied that he said employees would be sacked if they had alcohol in their system or Panadol Forte or that there would be no second chance.
[48] Mr Filipendin said that some employees expressed concern about having to disclose any prescription medications they were on and were concerned about the effect of these in drug testing. He said some employees were angry and a small group were aggressive in one of the meetings.
[49] The reports of the meetings by employee witnesses were different in emphasis from that of Mr Filipendin and Ms Wallace. The evidence of the employees was that the meeting attended was tense 17 and got heated.18 They said that Mr Filipendin was agitated and aggressive.19 A number of them heard Mr Filipendin say that there would be no second chance under the policy, people would be sacked or that it was a zero tolerance policy.20 No-one suggested that Mr Filipendin yelled but it was said that he did raise his voice to try and calm things down or be heard over people.21 Some employees suggested in their evidence that Mr Filipendin was pointing his finger and said he would “nail” people.22
Consideration
[50] It is evident that employees were not happy or were upset after the meeting either by the content of the meeting or the conduct, in particular, of Mr Filipendin. 23
[51] On the basis of the evidence I am satisfied that each of the meetings was heated and not managed well by Mr Filipendin. There is no substantial difference in reports from either of the meetings. No evidence was adduced to suggest that there was any collusion in the evidence of the employees.
[52] To the extent that employee concerns were not addressed I am satisfied that employees were disgruntled, and some agitated, when they left the meetings.
[53] There is no doubt that the policy was the subject of discussion in the workplace following the briefings provided by Mr Filipendin. 24
[54] Following the meetings on the Thursday employees either went home or commenced their shift. I accept that overtime was worked as usual that evening, the following day (Friday, 21 July 2017) and Saturday 22 July 2017.
[55] The parties agree that I do not need to make any definitive findings as to what did occur at the briefings conducted by Mr Filipendin. I agree. I do however consider it important to establish the mood following the meeting. To that extent I am satisfied that the meetings did not go well. I am satisfied that Mr Filipendin “lost the room” in both meetings through being unable to respond to a range of concerns raised by the employees.
Who organised the non-performance of overtime?
[56] Evidence was given by a number of employees as to why they decided not to work overtime on Monday 24 July 2017 and subsequent days following the briefing on the revised policy.
[57] The evidence from the individual employee witnesses was that they decided individually not to work overtime 25 and that they were not directed to not work overtime by either of the Applicants.26
[58] Mr Rustemovski gave evidence that on 24 July 2017 he arrived at work for the afternoon shift and spoke to Mr Attrill to confirm his upcoming annual leave. He says that he told Mr Attrill that he did not want to work overtime that week as he was going on leave at the end of the week and on the Wednesday morning he needed to get his parents to the airport at about 4:00am.
[59] About an hour into the shift Mr Rustemovski said he was called to Mr Filipendin’s office along with Mr Ahmadyar. Mr Filipendin said he had heard that the employees were upset, and some people had gone home early from the day shift and not worked overtime. Mr Filipendin asked Mr Rustemovski and Mr Ahmadyar to speak to the workers and find out what was going on. Mr Rustemovski said he could not do that as he was on the trolley cart so Mr Filipendin asked Mr Ahmadyar to do so.
[60] Mr Rustemovski said that he returned to his work. Some of the employees asked him what had happened and he replied that he didn’t know and perhaps there would be some more meetings. He says he then completed his ordinary hours and went home at midnight.
[61] Mr Rustemovski said that there was nothing unusual about his movements that evening at work as apparently seen on the CCTV footage 27 (see the evidence of Mr Sanj Thapliyal below) from any other normal day. Of the still photographs taken from the CCTV footage Mr Rustemovski identified himself in a number of the photographs and, to the best of his knowledge, those employees he was seen with. Of the photograph at R29.428 Mr Rustemovski’s evidence is that it was most likely a paper break on the corrugator as that was the only circumstance in which the group of employees would gather as shown. As to the other photographs shown to him Mr Rustemovski was not able to recognise who some of people were as the photos were “a bit blurry”.29 He denied that he was discussing an overtime ban with the employees or encouraging them to go home after seven hours work.
[62] Mr Rustemovski said that, whilst the Visy policy is that mobile phones should not be used on the shop floor, there is an unofficial tolerance if usage is kept to a minimum. He said it was not unusual for him to make or receive a couple of calls or texts during the working day. Of the phone records (see details below) Mr Rustemovski agreed that they showed that there were a number of calls and text messages following the time of the briefing on the revised policy by Mr Filipendin. He says that it is likely the contact between himself and Mr Lazim Alievski (Laz), Corrugator Manager, was with respect to a joint building project they were involved in. While he did speak to Mr Ahmadyar following the meeting conducted by Mr Filipendin on 20 July 2017 he said this would have been about how poorly the meeting had been run. 30 Of the other calls and texts Mr Rustemovski’s evidence is that they were not about organising an overtime ban.31
[63] Mr Rustemovski gave evidence that he arrived at work as usual on Tuesday 25 July 2017. His supervisor, Mr Yassin, asked if he was working overtime that night and Mr Rustemovski says he reminded Mr Yassin that he was going on leave and not working overtime that week.
[64] At about 9:00pm the Applicants met with Mr Filipendin and Mr Beaton, State General Manager, about the policy. At that meeting Mr Beaton raised the issue of overtime being declined. Mr Rustemovski said that Mr Ahmadyar replied that they (he and Mr Rustemovski) could not tell the workers what to do. Following a brief break in the meeting Mr Beaton advised that the policy would stand. On leaving the meeting a few employees asked what was going on to which Mr Rustemovski replied that nothing had changed.
[65] Mr Rustemovski said that on Wednesday 26 July 2017 he was given an envelope by Mr Filipendin (as were other staff) but cannot recall what was in it. He says that on Thursday 27 July 2017 he was ill so did not attend work. On Friday 28 July 2017 he was on annual leave but received a call from Mr Bull from the AMWU advising that Mr Ahmadyar was “in trouble” and he should come into work.
[66] Mr Rustemovski expressly denied that he had encouraged anyone to not work overtime or to go home after normal hours or that he had co-ordinated the non-working of overtime in conjunction with Mr Bull, Mr Ahmadyar and Mr Alievski.
[67] Mr Ahmadyar gave evidence that, following the meetings of 20 July 2017 about the policy everyone was talking about it and wanted him to do something about it. Mr Ahmadyar said that on Friday 21 July 2017 Mr Filipendin went around talking to employees about the policy. Mr Ahmadyar said he worked overtime on Saturday along with about 15 others. Again, the other employees approached him about the policy.
[68] On Monday 24 July 2017, not long after commencing afternoon shift, Mr Ahmadyar says that he and Mr Rustemovski were called to a meeting with Mr Filipendin. Mr Filipendin asked them why employees on the day shift had not worked overtime. Mr Filipendin asked them both to talk to the workers and find out what was going on.
[69] Mr Ahmadyar said that on returning to the shop floor he spoke to Frank on the Flexo 245 machine who asked what had happened at the meeting with Mr Filipendin. On being told Mr Ahmadyar said that Frank replied “[w]e shouldn’t accept this…[w]e should do 7 hours”. Mr Ahmadyar said that he responded to Frank that it was up to him (Frank). 32
[70] Mr Ahmadyar said that he then spoke to Glenn who gave a similar response to that of Frank. He spoke to other workers who gave similar responses. Mr Ahmadyar says that on all occasions he responded that it was up to them as to whether they worked overtime. Mr Ahmadyar says that by the end of his shift it was obvious that “a lot of people would not be working overtime.” 33 He said that, as a delegate, he did not think he should work overtime if his colleagues weren’t, he was tired anyway from working overtime the previous week, so he went home at the end of ordinary hours.
[71] Mr Ahmadyar said that on 25 July 2017 he started work as normal and, along with Mr Rustemovski, was called to a meeting with Mr Filipendin and Mr Beaton. Mr Beaton asked why no one was working overtime and he replied that they were not happy with the policy and did not want to work overtime. Following Mr Beaton consulting with Adrian Dalgleish, Visy’s National Manager, the Applicants were advised that the policy would not change. Mr Ahmadyar said that Mr Beaton told him and Mr Rustemovski that they needed to tell the workforce that they needed to work the overtime. Mr Ahmadyar replied that he and Mr Rustemovski did not control the workers and Mr Beaton would need to speak to the workforce.
[72] Mr Ahmadyar said that workers asked him what had happened in the meeting and he told them. The response from most was that they were going home at midnight (that is, not working overtime).
[73] Mr Ahmadyar said that on Wednesday 26 July 2017 he received a phone call from Mr Bull advising him that the Commission had issued orders that industrial action should cease and asking him to let the evening shift know. When Mr Ahmadyar arrived at work he advised those who worked near him of the order of the Commission. He says that later in the shift Mr Filipendin handed out a notice to the workers. Mr Ahmadyar said that night some people did work overtime and some did not. He said that he did work overtime.
[74] Mr Ahmadyar denied that he told any employees that they were not to work past midnight. 34
[75] Mr Filipendin denied that he spoke to any of the workers individually about the policy on Friday 21 July 2017 as suggested in the evidence of Mr Ahmadyar.
[76] Mr Filipendin’s evidence is that on 24 July 2017 he heard that there was a ban on overtime. The Applicants were on afternoon shift and he called them into a meeting to try and find out what was going on. He said in his written statement that he did not ask the Applicants to talk to the workers and find out what was going on. 35 However, in his oral evidence Mr Filipendin said that he could not recall if he had asked the Applicants to investigate what was going on with the workers although later conceded that he probably said something like “Go and find out,”36 expecting the Applicants to find out what was happening.
[77] Mr Filipendin agreed that on the evening of 25 July 2017 he attended a meeting with the Applicants and Mr Beaton. The Applicants indicated that they wanted some changes to the policy. Mr Beaton advised the Applicants that it was Visy’s view that the failure to work overtime was unprotected industrial action and all employees should be working as normal.
[78] Mr Filipendin gave evidence that his staff told him “that all the operators to whom he [presumably the supervisor reporting to Mr Filipendin] spoke…were willing to work the booked hours, but they had been asked to show their support to the union.” 37
[79] Mr Kopel, National Employee Relations Manager, undertook an investigation of the Applicants’ conduct at the behest of Mr Beaton. That investigation is considered further below. In the course of the investigation a number of supervisors and one operator were interviewed by Mr Kopel and notes of those interviews kept. Mr Kopel interviewed nine employees in addition to the two Applicants. Of those interviewed all bar one (Mr Tom Jacobson) were supervisors or above.
[80] Mr Petrecca told Mr Kopel 38 that he saw Mr Ahmadyar “chatting to people on a machine” not in his work area on 24 July 2017. An unnamed employee told him “they” were telling “us” not to work overtime. Mr Petrecca assumed “they” were the union. Mr Petrecca said most employees wanted to work but “had to show support” because they were scared of being victimised. Mr Petrecca said that on the following day (Tuesday 25 July 2017) “all employees” told him they would only work to midnight. He said that the Applicants had a meeting with Mr Filipendin and Mr Beaton. When the Applicants left that meeting he saw Mr Ahmadyar “walking through the floor being animated”. Mr Ahmadyar returned to his work area and Mr Petrecca saw a number of employees go to him although did not hear what Mr Ahmadyar said to them. Mr Petrecca took Mr Ahmadyar’s behaviour to mean that they (the Applicants) had not got their way at the meeting. Mr Petrecca said that he spoke to Mr Ahmadyar on 25 July 2017 about the overtime and that Mr Ahmadyar said “it’s not up to me. It’s the people”. He did not see Mr Ahmadyar going from machine to machine on 25 July 2017 and did not hear what he was saying. On 26 July, following the proceedings in the Commission, Mr Petrecca said he heard Mr Ahmadyar say “the bans are off”. Mr Petrecca said he spoke to other employees some of whom said they would only work until midnight whilst others had not yet confirmed what they would do. He also said that a number of people came up to him and indicated that they were “doing it” to “support the union”.
[81] The direct evidence of organising carried out by the Applicants that Mr Petrecca gave was that he heard Mr Ahmadyar saying something in accordance with an order of the Commission.
[82] Mr Attrill gave information in his statement to Mr Kopel of discussions he had with a number of employees, none of whom he is reported as saying said that the Applicants were organising the non-performance of the overtime. He concluded that “most people wanted to do their normal overtime” and that it “seemed that this protest was organised by the union delegates” in circumstances where not one person he spoke to said this. Mr Attrill recalls a comment of “when will the union and management sort this out” but attributes this to no-one in circumstances where he was prepared to name a number of employees. On 26 July 2017 Mr Attrill said that Mr Rustemovski said to him “[t]hey are going to lock me up; I will be in the federal court”.
[83] Mr Steve Walkeden is the Afternoon Shift Supervisor in Dispatch. He was interviewed by Mr Kopel as part of the investigation conducted by Visy into the conduct of the Applicants. He said that the notes produced by Mr Kopel of the interview 39 he made are accurate. Those notes indicate that Mr Walkeden said that on 24 July 2017 Mr Ahmadyar came into his office and spoke to his crew (of two forklift drivers). He heard Mr Ahmadyar say that “[t]hey are going to have an overtime ban; I can’t make you guys leave but we should all stick together because we don’t want the company fucking us over.” Mr Walkeden said he told Mr Petrecca about what Mr Ahmadyar had said.
[84] Mr Walkeden said that his crew did not ban overtime and he “didn’t see any other delegates go around”.
[85] Mr Alievski said that he “stayed away from asking people about why” and just asked his crew if they were working the overtime. He “didn’t see anyone organise the OT ban”.
[86] Mr Nathan Guerrieri, Shift Supervisor, worked the blue crew (day shift at the time). He said that he spoke to about 30 people but could not recall “exact conversations”. He said he asked people if they would stay to work overtime but most indicated they would not. One employee (Mr Nick Kaye) said that if he stayed he would be “singled out” by the union delegates. He “didn’t see anyone in charge of telling people” and did not see “delegates discussing this with anyone.” Mr Guerrieri was told by Mr Petrecca that he saw Mr Ahmadyar approaching people and telling them not to work overtime.
[87] Mr Tuyau was interviewed by Mr Kopel as part of the investigation. He gave evidence that the notes taken by Mr Kopel40 were not an accurate record, in particular he said that paragraph 11 and the first sentence of paragraph 12 were not accurate.
[88] Mr Tuyau’s evidence is that on 24 July 2017 there were “whispers on the floor” of an overtime ban. He said that at about 8:00pm that evening Mr Ahmadyar asked him if he, Mr Ahmadyar, could speak to his crew about the policy. He said that Mr Ahmadyar went around and spoke to “the guys”. Mr Tuyau said he heard Mr Ahmadyar say to two or three guys on the Evo machine “[l]ook I can’t tell you what to do, but we’re all going home at midnight” and he “believe[s]” he had similar conversations with other operators. It was “obvious” to him that Mr Ahmadyar “influenced this decision on the part of everyone”. He said he saw the Applicants together going around from one machine to the next. The next day (25 July 2017) Mr Tuyau spoke to everyone and asked if they were working overtime that day but “[e]veryone wanted to go home and not work the OT”.
[89] Mr Tuyau said that it was not unusual for him to speak by phone to Mr Ahmadyar.
[90] Mr Rustemovski reports to Mr Yassin. Mr Yassin was interviewed by Mr Kopel on 2 August 2017 as part of the investigation conducted by Visy into the Applicants’ conduct. In that interview41 Mr Yassin said that when Mr Rustemovski leaves his position he usually lets Mr Yassin know. He said he could not remember if Mr Rustemovski had approached him to do this on 24 July 2017 or not and could not remember if he saw Mr Rustemovski go around to the various machines.
[91] Mr Yassin said that on the Monday Mr Rustemovski told him that he would be leaving at midnight each night that week as he was going overseas at the end of the week.
[92] Mr Yassin told Mr Kopel that he did not hear anyone talking about an overtime ban.
[93] On or about 16 August 2017 Mr Yassin was approached by Mr Harmer who said that something with his statement to Mr Kopel was not right and it did not accord with video footage Mr Harmer had seen on CCTV footage of Mr Yassin spending some 30 minutes talking to Mr Rustemovski. Mr Harmer and Mr Filipendin conducted a further interview with Mr Yassin on 16 August 201742 and asked Mr Yassin if he wished to amend his statement made to Mr Kopel on 2 August 2017. Mr Yassin indicated that he was “ok with the statement”. Mr Harmer asked Mr Yassin of his memory of events on 24 July 2017 and if he was withholding any information, that Visy had reviewed the CCTV footage and that this showed Mr Yassin having “a number of interactions” with Mr Rustemovski. Mr Yassin explained it was about the policy.
[94] On 17 August 2017 Mr Yassin approached Mr Filipendin and said he wanted to have another discussion with him and Mr Harmer. The notes of that meeting43 indicate that Mr Yassin said at that meeting that he “had thought long and hard over his previous statements and comments with respect to interactions with Beni Rustemovski” and that he was “concerned as to any repercussions or intimidation against him personally and his family”. Mr Yassin said that he had a discussion with Mr Rustemovski on 24 July 201744 and that Mr Rustemovski said to him that he had been “speaking with the Union and that it was ok for the employees to engage in the overtime ban and that there was no requirement under the EBA to work the overtime.”
[95] The notes of the meeting of 16 August 2017 indicate that Mr Yassin was also asked about the meeting Mr Rustemovski attended on the evening of 24 July 2017, if he knew what Mr Rustemovski was doing when he went off to his “meeting” and if he often covered the trolley cart duties when the delegates were off “doing their business.”
[96] In his oral evidence Mr Yassin agreed that Mr Harmer was critical of him for condoning an operator “departing his job to engage in union business.” Mr Yassin explained that Mr Harmer saw it as strange that a manager would cover for an employee and said that Mr Harmer was “disappointed”.45 Mr Yassin was questioned by Mr Harding in his oral evidence about the conversation he had with Mr Rustemovski on 24 July 2017:
No, he didn’t say to you he had been speaking with the union and it was okay for employees to engage in the overtime bans? -I had this conversation with Ben on the trolley car. So when I asked him that question, he said it’s okay not to do the overtime.
It’s okay not to do the overtime? -Yes.
Is that all he said? -Yes.
Okay. So he said it’s okay not to do the overtime, and that’s all that he said about it? -That’s it.46
[97] Mr Yassin confirmed that this was the extent of the conversation he had with Mr Rustemovski as far as he could remember.47
[98] Mr Yongo Delfin, Machine Operator, gave evidence that on 24 July 2017 he saw Mr Ahmadyar (but not Mr Rustemovski). He said that Mr Ahmadyar told him that they were only working seven hours that day but did not tell him why. He asked Mr Ahmadyar “what about tomorrow” to which he says Mr Ahmadyar said “we shall see”. Mr Delfin worked seven hours on 24 July 2017 and 10 hours on the following two days.
[99] Mr Tom Jacobson, Machine Operator, was the only Operator to be interviewed by Mr Kopel. He said to Mr Kopel that Mr Rustemovski had told him “[t]he other side is going to work seven hours only, but I’m not pushing anyone here to go after seven hours, I’m letting you know they’re all going after seven hours.” 48 He then spoke to Mr Rustemovski who said “we’re going to have an overtime ban” and that he saw Mr Ahmadyar “walking around as well.”49
The video footage and movements of the Applicants
[100] Mr Sanj Thapliyal is the State Technical Manager for Visy. He gave evidence that each Visy site in Victoria is covered by CCTV which is managed by a third party security company. Mr Thapliyal was asked by Mr Beaton to observe CCTV footage from 24 to 28 July 2017 with a focus on the movements of the Applicants.
[101] Mr Thapliyal said that he observed about 80 hours of CCTV footage. 50 Whilst he was viewing the footage he recorded what he saw at various times and then extracted a number of photographs from the footage. He says that he “selected these still photographs as they showed Mr Rustemovski and Mr Ahmadyar away from their work stations during shift hours, interacting with other colleagues.”51 He says that he downloaded the photographs and Mr Attrill confirmed the identity of the people in the photographs.
[102] Mr Thapliyal produced a “map” of Mr Rustemovski’s movements on 24 July 2017 52 after viewing the CCTV footage.
[103] Mr Thapliyal also set out a timeline of Mr Ahmadyar’s movements although did not create the type of map he produced of Mr Rustemovski’s movements.
[104] The photographs produced by Mr Thapliyal all relate to 24 July 2017. Limited information is provided of the movements of the Applicants on 25 July 2017.
The telephone calls and text messages
[105] Pursuant to an order of the Commission the phone records of the Applicants were produced.
[106] Those records appear to show that between 20 and 26 July 2017 there was a fair volume of phone calls and text messages between the Applicants; with Mr Bull, with Mr Rawaka and others.
[107] No records were produced of the content of the text messages exchanged. The Applicants and Mr Bull gave evidence of the content of the phone conversations they had to the extent they could recall these. Mr Ahmadyar did not deny that he spoke to Mr Bull but said that those conversations were about the revised policy. 53 Mr Rustemovski consistently denied he spoke to anyone about the non-performance of overtime.
The Order to stop industrial action
[108] On 26 July 2017 Visy made an application to the Commission for an order under s.418 of the FW Act in respect to what it said were “unlawful bans on overtime”. 54 The matter was listed for hearing at 2:00pm that day. Prior to the hearing of the application and following discussions between Visy and the AMWU, the AMWU gave an undertaking that it would not organise industrial action at the Dandenong site; would advise the morning and afternoon shift delegates to immediately cease organising industrial action and that the delegates were to advise employees to work rostered overtime in accordance with custom and practice; and would advise AMWU members to work rostered overtime in accordance with custom and practice.
[109] Despite this undertaking on Visy’s material 20 employees did not work overtime at the conclusion of the day shift at 1:30pm on 26 July 2017. 55 Visy therefore sought, and was granted, an interim order from the Commission late in the afternoon of 26 July 2017.56 This order came into effect from 12:01am on 27 July 2017.
[110] The AMWU did not put any evidence before the Commission in relation to the case of Visy that industrial action was being organised at the site.
Consideration
[111] The evidence before me from individual employees does not support a conclusion of any collusion between them as to their evidence. Further, I am not convinced that these witnesses were no more than a cheer squad for the Applicants. There were too many of them to have devised and maintained some fabrication. They were honest people recalling events of two years ago with the best they could recollect.
[112] I accept the evidence of the individual employees as to how each of them came to decide to not work overtime on some or all of the days in question. I found these witnesses to be honest in their evidence. That the ability to earn additional money through overtime is a bonus of working for Visy and that this money was foregone by not working the overtime does not affect their credibility.
[113] I have drawn no adverse conclusions from the evidence of the Applicants or Mr Bull because they cannot recall the specific detail of phone conversations each had around the time of the non-performance of overtime or the detail of specific conversations they may have had on the shop floor. The events that led to the dismissal of the Applicants occurred two years prior to the hearing of this application. The phone calls and text messages were not raised as a matter with the Applicants until this hearing so they would have no reason to keep them in mind. That the calls were made around the time of the dismissal of either Applicant is not a reason they should keep the details in mind or a basis on which to draw an adverse inference. As to the conversations with other employees on the shop floor the evidence indicates that each Applicant has maintained a consistent position from the time of the dismissal as to those conversations.
[114] I accept the evidence of each Applicant that Mr Filipendin had asked them to find out what was happening on the shop floor – a point Mr Filipendin conceded in his evidence. I am satisfied, on the basis of the evidence, that this explains at least in part the movement of the Applicants around the shop floor where it may not have been in accordance with their “normal” movements.
[115] I do not accept the evidence of Mr Filipendin that “all the operators” to whom his staff spoke said they had been “asked to show their support to the union” 57 as persuasive. It is hearsay evidence twice removed. I do not know who of his staff Mr Filipendin refers to, let alone who the operators might be to whom they spoke.
[116] I do not accept the evidence of Mr Yassin that Mr Rustemovski said to him that the union had said that it was “okay for the employees to engage in the overtime ban”. 58 Mr Yassin’s evidence has changed each time he has been questioned. He originally did not suggest such a conversation had occurred and confirmed this with Mr Harmer in his second interview. In his third discussion with Mr Harmer he said the conversation did occur but during cross-examination said that all Mr Rustemovski said was that it was okay not to do overtime. The constant changing of Mr Yassin’s evidence suggests that he is not a reliable witness.
[117] I accept the evidence of the supervisors that they heard whispers on the shop floor that employees were not working overtime. Little of what they said they heard or were told however supports a conclusion that the Applicants were involved in organising the non-performance of overtime. I have, however, not taken account of the hearsay evidence of these witnesses or the conclusions they have drawn in the statements made to Mr Kopel.
[118] Mr Walkeden’s evidence comes closest to supporting a finding that Mr Ahmadyar might have encouraged employees to not perform overtime. Mr Walkeden’s evidence is, however, tainted by a residual bitterness he appears to harbour in relation to Mr Ahmadyar with respect to coverage of the existing enterprise agreement. I accept Mr Walkeden’s evidence as to what he heard but do not consider, without other direct evidence, it is enough to support a conclusion that the Applicants organised the non-performance of overtime.
[119] Mr Tuyau is the only supervisor to suggest that both the Applicants went from machine to machine together. This is not supported by any other evidence and in fact is contradicted by other evidence including the photographs such that it is not reliable.
[120] Overall the evidence of the supervisors and Mr Attrill in their statements to Mr Kopel is heavy on hearsay, conjecture and conclusions. In this respect it provides little assistance in deciding if the conduct occurred. This is not to criticise the supervisors. They responded to what was asked of them but this does not overcome the deficiencies in those statements. Little was added to their evidence in these proceedings that would alter this general view. In circumstances where none of the employees who did not perform the overtime (or even those who did) have given direct evidence that the Applicants organised the non-performance of overtime I am unable to conclude, on the basis of the evidence before me, that they did so.
[121] The still photographs taken from the video footage and the “map” of Mr Rustemovski’s movements do not evidence, objectively, any unusual movements of Mr Rustemovski on the evening of 24 July 2017, in part because there is no other night of movement to compare it to. Mr Rustemovski said, and I accept, that he does, as part of his role, talk to other employees and the stills and the map show nothing else.
[122] I accept that the Applicants made a number of phone calls to each other, Mr Bull and other employees and that text messages were also exchanged over the period 20 to 26 July 2017. The evidence of the existence of the phone calls does not support a conclusion, objectively considered, that the Applicants organised the non-performance of overtime. I have dealt with whether it is reasonable for me to infer such a matter below. I should observe that, given the turmoil at the worksite caused by the policy and the non-performance of overtime, it would not be surprising to see an increase in phone traffic but without evidence of the content of the phone calls and without the text messages which it seems to me could have been sought, I am being asked to draw conclusions about the phone calls in circumstances where the conduct is denied and there is no base data to conclude if the traffic levels were substantively different from any other time.
[123] I am satisfied that there is no direct evidence to support a finding that the Applicants engaged in organising the non-performance of overtime at Visy on 24 to 26 July 2017.
What role did Mr Bull play?
[124] Mr Bull’s evidence is that in mid-July 2017 he received a text message from Mr Rustemovski attaching a copy of Visy’s new policy. 59 He says it was difficult to read so he arranged to attend the Dandenong site and pick up a hard copy of the policy.
[125] Mr Bull said that on 20 July 2017 he drove into the driveway at Visy at about lunchtime and picked up a copy of the policy from Mr Rustemovski. He says that the phone call and text message between himself and Mr Rustemovski at about this time would have been about the policy and him attending at the site to collect it. Despite the evidence of Mr Filipendin and Mr Beaton, Mr Bull is confident he collected the policy (without entering the Visy site but by driving into the driveway) on 20 (and not 19) July 2017.
[126] Mr Bull said that while he was in the driveway Mr Filipendin came out and asked what he was doing there. He told Mr Filipendin he was there to get a copy of the policy.
[127] Mr Bull said that the following day he scanned the document and sent it to Ms Katrina Ford, 60 an AMWU lawyer, and sought advice from her and from the AMWU Victorian Branch industrial office with respect to the policy. He said he did not hear back from Ms Ford about the policy until 25 July 2017 (the following Tuesday).
[128] Mr Rustemovski gave evidence that the first meeting with Mr Filipendin about the policy was on 19 July 2017. He said Mr Filipendin only had one copy of the policy. He asked Mr Filipendin if he could give a copy of the policy to Mr Bull to which Mr Filipendin replied “No problem.” 61
[129] Mr Rustemovski said that he saw Mr Bull in the driveway on 20 July 2017 and did not meet Mr Bull in the carpark 62 as suggested by Mr Filipendin63. He said the meeting with Mr Bull was brief and he handed a copy of the policy to him. He said he could recall seeing Mr Filipendin but not Mr Beaton at the time.
[130] Mr Ahmadyar said that he and Mr Rustemovski met with Mr Filipendin on 18 or 19 July 2017 when Mr Filipendin advised the policy was to be changed. He said that at that time Mr Filipendin did not give either of them a copy of the policy. Mr Ahmadyar said that Mr Bull came to the site “on Thursday” 64 and came into the driveway. He said Mr Bull was not in the carpark. Mr Ahmadyar said that Mr Beaton was not there but he did see Mr Filipendin.
[131] Mr Ahmadyar said that a number of the phone calls between himself and Mr Bull that occurred after 20 July 2017 were with respect to the policy. Mr Bull had said that he would get the legal officer at the union to check the policy and he was chasing up whether Mr Bull had an answer on that matter. Whilst he could not recall the content of other phone calls his evidence is that they were not about an overtime ban.
[132] Mr Beaton said that “on or about 19 July 2017” 65 he was with Mr Filipendin when they saw Mr Bull in the carpark at the Dandenong site talking to the Applicants. He said Mr Filipendin approached Mr Bull as he was aware that Mr Bull had not obtained a right of entry for the site for that day. He saw that Mr Bull had a copy of the policy. He said that Mr Filipendin asked Mr Bull what he was doing to which Mr Bull replied “ok I’m leaving”.
[133] Mr Filipendin gave evidence that he met with the Applicants as AMWU delegates on 18 July 2017 and at this meeting provided them with a copy of the proposed policy. He said that on 19 July 2017 he was with Mr Beaton when he saw Mr Bull in the carpark speaking to the Applicants. He said he approached Mr Bull and saw he had a copy of the policy. He asked Mr Bull what he was doing on site without a right of entry to which Mr Bull replied “ok I’m leaving”.
[134] Mr Bull acknowledged a number of phone calls between himself and Mr Ahmadyar in the period 20 to 26 July 2017. He said that these were in relation to the advice he had sought from Ms Ford and, on 26 July 2017, would have been in relation to advising the delegates of the undertaking given by the AMWU in the matter before the Commission and ensuring the workers were doing overtime as usual.
[135] Mr Bull said he had also placed some calls to Mr Rustemovski and Mr George Rawaka (the blue shift delegate) to find out what was happening at the site as he had received contact from Visy management about the situation at the site.
Consideration
[136] I am satisfied that Mr Rustemovski provided Mr Bull with a copy of the policy. I am further satisfied that this occurred in the driveway of Visy’s Dandenong site. Faced with Mr Bull’s statement where Mr Bull said he had parked in the carpark 66 Mr Ahmadyar said when he saw Mr Bull it was in the driveway at Visy.
[137] I accept the evidence of Mr Bull that a number of calls he took from Mr Ahmadyar after 20 July 2017 were in relation to whether he had received advice from Ms Ford with respect to the status of the policy. This is consistent with the evidence given by Mr Ahmadyar.
[138] I accept the evidence of Mr Bull that he advised the Applicants that he would get legal advice as to the contents of the policy. That he indicated he would do so and that the employees of Visy were upset at the policy satisfies me that a number of the calls between the Applicants and Mr Bull were at least in part in relation to the status of the policy and that advice.
[139] On the basis of the evidence before me I cannot find that the calls made by Mr Bull or the calls made to Mr Bull by the Applicants were in relation to organising the non-performance of overtime. It is inevitable that some of the calls were in relation to that issue – particularly on 26 July 2017 once Visy had made an application for orders in the Commission directed at the AMWU, but this is not evidence that Mr Bull or the Applicants were involved in the organising of the non-performance of overtime.
The investigation
[140] On 27 July 2017 Mr Beaton, in consultation with Mr Filipendin and Mr Harmer decided to stand down the Applicants pending an investigation into their role in organising the overtime ban. 67 On that day Mr Beaton asked Mr Kopel to investigate the role of the Applicants. Mr Beaton said that he determined that the Applicants’ conduct should be investigated as he had received “feedback…that individuals and Fahim [Ahmadyar] were not in their areas, were walking the floor, were talking to operators to gain their support for an overtime ban.”68
[141] Having asked Mr Kopel to investigate Mr Beaton played no further role in the investigation process although he appears to have been the decision-maker with respect to the Applicants’ employment. Mr Kopel decided who to interview. Mr Beaton was not concerned that Mr Kopel did not interview any of the workers who “undertook the overtime ban”. 69
[142] Mr Beaton said that he was briefed by Mr Kopel and Mr Filipendin and given a copy of the witness statements from those they interviewed 70 which he said he read.71 He did not agree that none of those interviewed were supervisors stating that Mr Jacobson was not a supervisor and he was not sure if Mr Alan Chapman was “at the time”.
[143] Mr Beaton gave evidence that the reason for the decision to dismiss the Applicants was because the “evidence provided supported the allegations that they had organised the overtime ban.” 72 Mr Beaton accepted that, at the time he decided to dismiss the Applicants, he was aware that they were AMWU delegates. When asked if he believed the Applicants were “using their influence as delegates to procure an overtime ban” he replied that he “believed the evidence supported allegations that they were organising an overtime ban.”73 Mr Beaton further said that the evidence suggested that the workforce (more generally) had not organised the overtime ban but that the Applicants had.74
[144] Mr Beaton said that, following the investigation and advice from Mr Filipendin and Mr Kopel that the evidence supported that Mr Ahmadyar had “engaged in conduct relating to the organising of the overtime bans” he determined to “speak to Mr Ahmadyar, and put to him the findings of the investigation, and to provide him with an opportunity to respond to the findings.” 75 Mr Beaton along with Mr Kopel met with Mr Ahmadyar on 4 August 2017. He gave Mr Ahmadyar an opportunity to respond to the findings. After considering his response and consulting with Mr Kopel, Mr Filipendin and Mr Harmer determined that Mr Ahmadyar had engaged in serious misconduct and the misconduct warranted his dismissal. Mr Beaton then advised Mr Ahmadyar that he was being dismissed effective immediately.76
[145] On about 23 August 2017 Mr Beaton met with Mr Rustemovski who had just returned from his period of leave. Mr Kopel also attended that meeting. Mr Beaton advised Mr Rustemovski that he was satisfied that the “allegations against him in relation to the organisation of the overtime bans had been made out”. 77 Mr Beaton provided Mr Rustemovski with an opportunity to respond to the findings and, after considering his response and consulting with Mr Kopel, Mr Filipendin and Mr Harmer, Mr Beaton determined that Mr Rustemovski had engaged in serious misconduct and that the conduct warranted immediate dismissal. He advised Mr Rustemovski accordingly.
[146] Mr Kopel gave evidence that he was aware of disquiet with respect to the policy at Visy Dandenong prior to 24 July 2017. He said that he became aware that there might be overtime bans imposed on 24 July 2017 and, while he did not think it was clear “who had instigated the ban…there was a view that because of the report from supervisors that [the Applicants] had in fact organised it and were continuing to organise it.” 78
[147] Mr Kopel said that he was requested to undertake the investigation into the actions of the Applicants. In doing so he says he conducted “as thorough as an investigation as [he] was able to in the circumstances.” 79 He said that, of those he interviewed, two were not supervisors. One of those was Mr Attrill (who is the Plant Manager) and the other was Mr Jacobson.
[148] Mr Kopel interviewed the following employees:
(a) Mr Daniel Petrecca on or about 27 July 2017;
(b) Mr Steve Attrill on or about 28 July 2017;
(c) Mr Lazim Alievski on or about 2 August 2017;
(d) Mr Nathan Guerrieri on or about 2 August 2017;
(e) Mr Pat Tuyau on or about 2 August 2017;
(f) Mr Ali Yassin on or about 2 August 2017;
(g) Mr Alan Chapman on or about 2 August 2017;
(h) Mr Steve Walkeden on or about 2 August 2017; and
(i) Mr Tom Jacobson on or about 21 August 2017
[149] Prior to interviewing Mr Ahmadyar for the first time on or about 28 July 2017 Mr Kopel and Mr Filipendin finalised some questions to be asked of Mr Ahmadyar. 80 These questions included:
The decision to refuse OT
When and how was a decision made to organise the employees to collectively refuse to work scheduled planned OT?
Why was this decision made?
How was this communicated to employees?
Was this communicated to management?
Who communicated this to employees?
Was there any mass meeting held?
Who from the AMWU was involved?
Did any employees refuse?
What was advised to employees who did not want to?
[150] Mr Kopel said that he did not consider that any of these questions were predicated on an assumption that Mr Ahmadyar had organised the overtime ban but rather were “meant to elicit a response in respect of the allegations” put to Mr Ahmadyar. 81
[151] Mr Kopel made notes of each interview. The notes from his interviews are annexed to his first written witness statement. 82 He agreed that he did not talk to any of the employees specifically mentioned by any of the supervisors in the statements given to him, including those who report to Mr Walkeden in circumstances where Mr Walkeden said Mr Ahmadyar had “grabbed [his] guys”, pulled them aside and said to them that there was going to be an overtime ban. Mr Kopel said that he considered it “sufficient to rely on the evidence of Mr Walkeden.”83
[152] Mr Kopel agreed that he had not interviewed anyone who had not complied with their previous commitment to work overtime. He said that:
We had previously considered who to interview and it was apparent based on what had been communicated to us that there was a high potential and actual fear of intimidation and reprisals. On that basis it was decided, if at all possible, to interview the supervisors and the management and see whether there would be sufficient evidence from those individuals as to whether or not the allegations could be sustained. 84
[153] The Applicants were both interviewed as part of the investigation. Both had support people in the form of Mr Piccolo, an AMWU organiser, and a lawyer present for their interviews.
[154] Mr Kopel said that, in interviewing each of the Applicants, he asked a large number of questions about their movements on 24 July 2017. Mr Kopel said that he asked each of the Applicants at various times in their interviews why they were at particular locations at the site but did not believe “for the most part” what they told him. 85 Mr Kopel said he did not agree that the role of trolley operator involved going to all machines in the plant but did not know which machines they were not required to go to in their roles.86 Mr Kopel did not believe that the Applicants were asked to speak to workers about the policy but agreed that in some cases they did tell him that was what they were doing.87
[155] Mr Kopel said that the Applicants both denied that they had organised the overtime ban. 88 Mr Kopel agreed that Mr Ahmadyar put to him that he could “get a hundred people’s statements and ask them”.89
[156] In their interviews each of the Applicants consistently denied organising the non-performance of overtime.
Consideration
[157] Neither of the Applicants was asked in the investigation about the meetings they had with Mr Filipendin and/or Mr Beaton on 24 and 25 July 2017. They were not given an opportunity to explain why they may have been talking to people on the shop floor although I do accept either could have volunteered this explanation.
[158] The evidence before the Commission does not support a conclusion that the questions asked of the Applicants were designed “to elicit a response” from either Applicant, nor were they designed to understand the activities of either of the Applicants on 24 to 26 July 2017 (prior to the stand down) as put by Mr Kopel. The questions were closed questions based on an assumption that the Applicants had engaged in the very conduct Mr Kopel was meant to be investigating to determine if it had occurred. In this respect the questions asked of Mr Ahmadyar and Mr Rustemovski were unfair. Despite the form of the questions however, the responses of the Applicants did not waiver.
[159] I accept that the Applicants were supported by an AMWU organiser and lawyer in their respective meetings but this do not excuse the form of the questions asked of them. It was not the Applicants nor their support people’s responsibility to ensure questions were asked in an appropriate way.
[160] The details of the interviews conducted by Mr Kopel with the supervisors, Mr Attrill and Mr Jacobson are set out above and not repeated here. Those statements along with the interviews with each of the Applicants 90 formed the totality of the evidence relied on by Mr Beaton in making his decision as to the future of the Applicants.
[161] At its highest the statements of Mr Jacobson, Mr Walkeden and Mr Yassin made to Mr Kopel might support a conclusion that the Applicants were talking to employees about the non-performance of overtime but none of the statements could support a conclusion that the Applicants were involved in organising such non-performance. Even if the hearsay evidence in these statements was taken at face value by Mr Beaton it does not provide a basis on which he could reasonably conclude that the Applicants were involved in organising the non-performance of overtime.
[162] There is substantial conjecture, assumptions, hearsay and conclusions in the statements taken by Mr Kopel but little direct evidence that the Applicants were engaged in organising the non-performance of overtime. It is unclear, in these circumstances and faced with the direct denial of the Applicants, the basis on which Mr Beaton could conclude as he did.
[163] It is surprising that Mr Kopel did not interview any of the employees who are said to have not performed overtime (and there is no question that Visy knew exactly who these people were) but rather chose to rely on supervisors and the plant manager who provided, in the main, second and third hand accounts. No plausible reason is given for the decision to not interview any employees who did not perform overtime. Several employees had spoken openly to their supervisors suggesting little reason to assume they would have any concern speaking to Mr Kopel. The reason for not talking to these employees is not sustainable particularly in circumstances where the Applicants consistently denied their involvement. It may well be that Mr Kopel would not get the answers he wanted or might get answers not helpful to his inquiry but that is no reason not to have interviewed the employees themselves or other employees who had continued to work overtime.
[164] By excluding employees off the floor from his inquiries Mr Kopel provided an incomplete report to Mr Beaton and Mr Beaton made a decision without the benefit of a complete picture of the cause of the non-performance of overtime. Even without the questioning of employees directly involved in the non-performance of overtime the conclusion that Mr Beaton reached was not a safe conclusion.
[165] Given the decision resulting from Mr Beaton’s conclusion as to the conduct was to dismiss the Applicants from their employment more diligence and care should have attended that decision. This is not to suggest that the investigation should have been of a standard in a police investigation, but this does not mean there is no requirement for some rigour in the process.
CAN I INFER THAT THE CONDUCT OCCURRED?
[166] I have not found any direct evidence that would allow me to conclude that the Applicants engaged in organising the non-performance of overtime. Visy has submitted however that I can draw an inference, on the basis of the clear facts in this matter, that the Applicants were engaged in conduct in which they encouraged employees of Visy to not work overtime as it was customarily worked.
[167] To reach the conclusion sought of me by Visy I need to find that the contact between Mr Bull and the Applicants on 19 or 20 July 2017 and the subsequent phone calls between the Applicants and Mr Bull and the Applicants and other employees were all directed at organising the ban on overtime. I would also be required to conclude that Mr Rustemovski’s movements around the workplace on 24 July 2017 were not reflective of how he usually worked and that he was, in fact, organising employees to not work overtime as they usually did. Further, I would need to conclude that the Applicants were not honest in their evidence when each said that Mr Filipendin had asked them to find out what was going on in relation to the disquiet about the policy. I would also need to conclude that the employees who appeared as witnesses had not been honest in their evidence when they said that the Applicants had not encouraged them to not work the overtime and that it was the employees themselves who decided not to work the overtime.
[168] The basis on which an inference can be drawn was discussed in A Smith and others v Moore Paragon Australia Ltd 91(Moore Paragon)where the Full Bench of the Australian Industrial Relations Commission said that “an inference can (as opposed to whether it should) be drawn if it is reasonably open on the proved facts.”92 Upon consideration of the relevant case law the Full Bench found:
[42] The statement of principles set out above may be summarised as follows:
ϖ an inference is assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts;
ϖ the drawing of an inference is part of the process of fact finding;
ϖ an inference can be drawn if it is reasonably open on the basis of agreed or proved facts;
ϖ the question whether a particular inference can be drawn from the facts found or agreed is a question of law;
ϖ where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference;
ϖ the circumstances must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture;
ϖ matters to be taken into account in drawing an inference include circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed;
ϖ generally it is not lawful to take into accountmoral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations;
ϖ the degree of probability required to found the necessary inference will depend on the nature of the proceeding:
o in a criminal case the facts must be such as to exclude reasonable hypotheses consistent with innocence,
o in a civil case you need only circumstances raising a more probable inference in favour of what is alleged;
ϖ a party’s failure to give evidence on some issue in cases where it is within that party’s power to provide or give evidence, may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence.
[169] The facts as I have found them are:
• The decision to work overtime by employees was made on the day the overtime was to be worked with employees being advised that overtime would be available on a Thursday for the following week;
• Mr Filipendin conducted two meetings with employees on Thursday 20 July 2017 at 4:00pm for the day shift and at 4:30pm for the night shift to explain the revised policy. The meetings did not go well, some workers were disruptive in the meetings and a number of workers left the meetings not happy with the proposal and/or Mr Filipendin’s conduct of the meetings;
• Overtime was worked with no disruption on Thursday 20 July 2017, Friday 21 July 2017 and Saturday 22 July 2017. I also accept that on Thursday 20 July 2017 employees were advised that overtime would be available the following week;
• Mr Bull was provided with a copy of the policy on 19 or 20 July 2017 by Mr Rustemovski while in the driveway at Visy. Even if he had entered the premises without notifying such entry in accordance with the right of entry provisions of the FW Act no issue is taken with him having been given the policy. Mr Bull told Mr Ahmadyar he would get some advice on the policy from Ms Ford, a legal officer with the AMWU. Mr Bull did not receive this feedback until late on 25 July 2017;
• The Applicants were requested by Mr Filipendin to find out what was going on in circumstances where a number of the morning shift had not worked overtime;
• The Applicants made a number of phone calls and exchanged text messages with each other, Mr Bull, Mr Alievski, Mr Rawaka and some others between 20 and 26 July 2017. The content of the text messages is not known, and no attempt was made to have these introduced into evidence. There is no direct evidence that the telephone calls were in relation to organising industrial action and, in fact, an alternative explanation for the phone calls has been provided. The Applicants further deny that the purpose of the calls or text messages was to organise the non-performance of overtime;
• There is no direct evidence that the Applicants were engaged in the organising of the non-performance of overtime;
• The investigation undertaken by Mr Kopel was flawed and the conclusions drawn from the investigation by Mr Beaton were unsafe.
[170] There is generally no dispute 93 that:
• On 24 July 2017 about 30% of the day shift and 85% of the night shift who had previously committed to work overtime declined to do so on that day.
• On 25 July 2017 about 60% of the day shift and all of the night shift who had otherwise committed to work overtime declined to do so on that day.
• On 26 July 2017:
• Visy sought orders in the Commission pursuant to s.418 of the FW Act that unprotected industrial action in the form of the refusal to perform overtime cease. The application was listed for hearing at 2:00pm.
• Prior to the hearing the AMWU gave an undertaking without admission of liability to the effect that it would advise its day shift and night shift site delegates prior to 1:00pm to immediately cease organising industrial action.
• About 85% of day shift who had committed to work overtime on that day declined to do so. Day shift overtime was due to commence at 1:30pm.
• Visy pressed their s.418 application with the Commission and the application was heard at about 4:30pm that day with an interim order that unprotected industrial action stop issued sometime after 5:00pm at the cessation of the hearing. The order came into effect at 12:01am the following day.
• About 28% of the night shift who had committed to overtime declined to do so.
[171] Ms Sweet submitted that the industrial action (or organised non-performance of overtime) occurred in the following circumstances:
• the Applicants were unhappy with the proposed policy and wished to have it softened;
• Mr Bull attended the Visy site on 19 or 20 July 2017;
• there was an exchange of multiple phone calls and text messages between the Applicants, Mr Bull and others at Visy from 20 July 2017 onwards;
• the conduct and movement of the Applicants around the Visy site on 24 July 2017.
[172] Ms Sweet said that this, along with the evidence of Mr Attrill and Mr Petrecca in particular is such that it is reasonable for me to infer that the phone calls and text messages and the discussions the Applicants had with workers at the site were for the purpose of organising the action taken by the employees in not performing overtime.
[173] Applying the principles arising from the decision in Moore Paragon I am not satisfied that the inference Visy ask me to draw is reasonably open to me. I have reached this conclusion because I have accepted an alternative explanation of the phone calls. I have also found that the Applicants’ movements around the site on 24 July 2017 were as a result of the request of Mr Filipendin that they find out what was going on. Once the phone calls and movements of the Applicants are explained the basis for the inference Visy want me to draw falls away even if I accept that the Applicants were not happy with the policy. Further, I do not see how I can draw any adverse finding as to the reason for Mr Bull’s visit to the site on 19 or 20 July 2017 (except perhaps to credibility). Mr Bull collected the policy, Mr Filipendin saw he had the policy but raised no objection and Mr Bull left the site. The inference Visy want me to draw only stands up if there is no alternative explanation of the phone calls or the movements of the Applicants on 24 July 2017. In addition, I have accepted the evidence of the employee witnesses that the decision not to work overtime was their own individual decision.
[174] Even if I had not reached such a conclusion I am satisfied that there are other equally plausible inferences that could be drawn from the facts that have been found. A revised policy had been issued. It caused some consternation in the workplace. That the union delegates on site would seek to get some advice from their union organiser is not unreasonable nor uncommon and that the organiser might come to the site to collect a copy of the document (given to the Applicants in their capacity as union delegates by Mr Filipendin) where it would appear there was no other means of providing a readable copy of the policy to Mr Bull cannot, in all reasonableness, be viewed with suspicion. There was a level of disruption in the workplace caused by the non-performance of overtime and attempts to have the policy softened or better explained. Movement by the Applicants around the site was explained by the request of Mr Filipendin that they find out what was going on. Having commenced this conversation on 24 July 2017 it is not unreasonable that employees sought more information from the Applicants following the meetings they had with Mr Filipendin and Mr Beaton on 25 July 2017.
[175] That I should infer that a photograph of four workers talking together at the corrugator supports a finding that industrial action was being organised is not open to me. It was put, and not disputed, that this number of workers from the corrugator would work together if there was a paper break in the machine. This equally supports the photograph.
[176] I do accept that by mid evening shift on 24 July 2017 there was discussion amongst the employees that some may not work overtime that night. The evidence of the employees called by the Applicants was that the decision was, however, their own. They were not swayed from this. That each saw the working of overtime on a very regular basis as a positive in working with Visy does not support an inference that the Applicants organised the employees not to perform overtime. To accept this proposition would require me to accept that each of the employees was not honest in their evidence before the Commission and there is no basis for me to make such a finding. The witnesses were credible working people who, beyond the policy, had no gripe with their employer at the time and appear to have none now.
[216] Mr Kopel agreed in cross-examination that in his interviews with each of the Applicants he had not put to them anything in relation to the Agreement or the operation of the dispute settling procedure. He further agreed that his views as to their compliance or otherwise with the Agreement in the future was his private opinion that he had come to following the dismissals and on review of “all the information at hand”. Whilst he had not asked either of the Applicants directly he said he could not believe they were not aware of the dispute settling procedure. 104 Mr Kopel, in his evidence, said that there were actually three dispute resolution clauses in the Agreement – at clause 23 and then through the incorporation of the “Graphic Arts Award, Metal Industries Award - and each of those contains a dispute resolution, as well.”105
[217] Mr Kopel said he was aware of the views of employees because he had “discussions with some employees and I've had discussions with some of the supervisors and managers, and it has been relayed to me that there is still a great deal of unhappiness relating to the recently ended Federal Court proceedings and that the emotional hurt is still fairly raw.” 106 He agreed that his resistance to reinstatement is based on his belief that both Applicants are “guilty of serious misconduct.”107
[218] Mr Filipendin said that he considers reinstatement would be “a backward step for the site.” He said that since the Applicants had been dismissed the atmosphere between management and the workforce was much “healthier”. He believes employees feel more valued and contribute to improvements “as part of a team rather than acting under the influence of the delegates.” 108
[219] Prior to their dismissal Mr Filipendin said that “any attempt at change…was resisted by the delegates.” 109 Mr Filipendin categorised “resistance” as occurring when the case for change is put forward and “getting the answers which are not really in line with, “[o]kay, let's work together and get something out of it." That's what I mean by resistance.”110
[220] Mr Attrill said that he believed that the Applicants organised the “overtime ban”. He said that he had lost trust and confidence in the Applicants “because of their refusal to work rostered overtime” and because they organised other employees to do likewise. He said their actions caused Visy a financial detriment. He does not consider he can have trust and confidence in the Applicants to follow the dispute settling procedure should they be reinstated and “become unhappy with any future decision” of Visy. 111
[221] Mr Thapliyal said that he is aware that the Applicants’ involvement in the overtime ban had caused large financial losses to Visy and has resulted in the loss of trust and confidence in the Applicants to perform their duties at the site. 112
[222] None of the employee witnesses called by the Applicants indicated that they could not work with the Applicants and were not asked what their knowledge of the views of the workforce might be to the return of the Applicants.
Consideration
[223] The matter to be determined is whether Visy might reasonably be held to have lost trust and confidence by the conduct of the Applicants including its concern that it cannot trust the Applicants to abide by the requirements of the dispute settling procedure of the Agreement. If it can be concluded that it is reasonable for Visy to have lost trust and confidence it is also necessary to determine if such a loss means that reinstatement is inappropriate.
[224] I accept that in finding that there was no valid reason for dismissal it does not automatically flow that reinstatement is the appropriate remedy. 113
[225] I should first make clear that any decision to reinstate the Applicants will be to reinstate them as employees of Visy. What should occur in relation to the roles that each occupied as a delegate for the AMWU is not a matter for me and is not a consideration in determining if they should be reinstated. The actions taken against the Applicants was because of their roles as employees in organising the non-performance of overtime – it was not because they were delegates of the AMWU. Their conduct as delegates for the AMWU (which I would note is generally accepted as a representative role and not an individual role) and any perceived shortcomings as such have not been at issue in these proceedings and it would seem to me it would be an injustice to decide whether or not they should be reinstated because of some concerns as to how each might have carried out that role.
[226] Generally, the complaint that the Applicants would not abide by the dispute settling procedure of the Agreement are broad statements without foundation. To the extent that Mr Kopel says this is a reason to not reinstate the Applicants, he identified three dispute settling procedures in the Agreement and says that, in the dispute that led to the dismissal of the Applicants, the dispute settling procedure in the Graphic Arts General Award 2000 114 is the one that the Applicants should follow. He was not aware if the Applicants were cognisant of the various dispute settling procedures as, in the investigation, he had not asked them of this. To the extent that reinstatement is objected to on the grounds that the Applicants were AMWU delegates and should know the dispute settling procedure or there was no confidence that each would abide by the dispute settling procedure in the future, this was not the gravamen of the reason for dismissal of the Applicants. It appears anomalous that this should be a substantive reason for not reinstating them. In any event it is a matter easily rectified.
[227] I do not accept the evidence of Mr Kopel that the Applicants had irreparably damaged their relationship with other employees. Mr Kopel’s evidence in this respect was repeated by Mr Beaton who extended it to suggest that the Applicants would victimise, harass and/or bully employee witnesses. No evidence has been given by employees of the existence of such damage or the fear expressed by Mr Beaton. A number of employees who worked directly with the Applicants were called to give evidence in the proceedings by the Applicants. These employees appear to have come willingly. None were asked as to any damage to their relationship with the Applicants – in fact it was said they were a “cheer squad” for the Applicants (a characterisation I have rejected). This is not evidence of damage to the relationship. No other employees (supervisors or otherwise) were asked if they held such fears.
[228] I do not accept that the Applicants have continued to show a lack of honesty and integrity. It seems to me that Mr Ahmadyar, in particular, encouraged Mr Kopel to ask anyone if he, Mr Ahmadyar, had organised the non-performance of overtime. He was open to Mr Kopel asking employees as to their motivations. Mr Kopel chose not to do so and, having not sought out the views of employees who did not work overtime, maintains a belief in the dishonesty of the Applicants such that neither should now be reinstated. Such a conclusion does not logically follow.
[229] That the Federal Court proceedings and “actions of the Applicants” were widely reported within Visy is not a reason in and of itself to find a loss of trust and confidence in the Applicants. If this was the case an employer could defeat any application for reinstatement on the basis that it decided to broadcast matters associated with the dismissal. No employer should be able to so easily defeat a key consideration in relation to an unfair dismissal.
[230] To the extent that Mr Filipendin considered the Applicants were resistant to change it appears he had very little interaction with them such that he could reach this conclusion. In any event his interactions with the Applicants appeared to have been in their roles as AMWU delegates and not as employees of Visy. I do note that Mr Filipendin no longer works for Visy such that any friction in his relationship with the Applicants would not be an issue in their reinstatement.
[231] As to the financial impact of the non-performance of overtime 115 Mr Beaton gave evidence that “the total cost to the business post and as a consequence of the overtime ban is stated in those pages as 1.4 million [dollars].”116 This was the “full cost to the business associated with the knock-on effect from the overtime ban and the ensuing strike action.”117 Mr Beaton agreed that the Applicants were not dismissed because of the strike action that occurred118 but says that if it was not for the “overtime ban this situation wouldn’t have [arisen]”.119
[232] Mr Harmer said that he considered the action of the Applicants “was deliberate and calculated to inflict substantial financial and reputational damage upon Visy’s business.” 120 He said that he “obtained that information in my discussions with Mr Kopel and Vic [Filipendin] post the investigation.” This was not information Mr Kopel or Mr Filipendin gave to him directly but “conclusions I reached on the information that was presented to me, the discussions I had with Mr Beaton.” He said that there was “numerous pieces of information.” Mr Harmer volunteered that he “was aware of the video footage and where the photos are that was taken. I was aware that they had denied the allegations that were put to them.”121
[233] Whilst I accept that there was a financial impact on Visy as a result of the non-performance of overtime, the evidence before the Commission does not support a conclusion that the total cost claimed by Visy of $1.4 million is attributable to the non-performance of overtime. On Mr Beaton’s own evidence most of the cost is attributable to subsequent strike action. The cause of that strike action is not before the Commission (although it is apparent that it occurred after the Applicants were stood down and it is not possible to attribute the cost to action of the Applicants. I accept that there were costs to Visy, I am just not convinced, even on Visy’s case, the identified costs can all be put at the feet of the Applicants.
[234] I accept that there are managers at Visy who consider it inappropriate to reinstate the Applicants because they no longer have trust or confidence in them as to how they might conduct themselves in the future. On a day to day basis however, the Applicants have to work alongside others on the shop floor. The only person who might interact with the Applicants on a day to day basis who says he has lost trust and confidence in the Applicants is Mr Attrill whose concerns go to the Applicants’ use of the dispute settling procedure. The remaining fellow workers who gave evidence expressed no concern with working with the Applicants.
[235] To the extent the concerns expressed by Mr Attrill (and some others) about compliance with dispute settling procedure of the Agreement might be real (and I do not say that they are) I am sure this can be managed through some co-ordinated briefing of the Applicants by Mr Harmer and the AMWU on the operation of the dispute settling procedure in the Agreement.
[236] For these reasons I am not convinced that any loss of trust and confidence in the Applicants is such that reinstatement would be inappropriate.
[237] Having found as I have with respect to the fairness of the dismissal of the Applicants I do not accept that the cost to Visy of the non-performance of overtime and the later strike action is a reason to not reinstate the Applicants.
[238] It is now over two years since the non-performance of overtime. It is 10 months since the finalisation of the Federal Court proceedings. None of the employee witnesses, in giving evidence, appeared to have any animosity to the Applicants or fear of the Applicants or concern as to their relationship to the Applicants such that I could consider reinstatement to be impractical.
[239] In reaching my decision I have taken into account the long standing employment relationship between each of the Applicants and Visy. It is the only company Mr Ahmadyar has worked for in the 24 years he has lived in Australia. Mr Rustemovski has had one other substantial employer for a short period of time in his working life and has spent 21 years with Visy prior to his dismissal. Both men were competent at their jobs – there being no other complaint of their work. Such lengthy, unblemished, employment should not be ignored in considering the appropriateness of reinstatement.
[240] Taking all of these matters into account I do not consider that reinstatement is inappropriate.
Continuity of service and continuous service
[241] I am satisfied that the period the Applicants were absent from the workplace should not break their continuity of service. However, the period of absence should not count as service for the purpose of determining any benefits. I am satisfied, in the particular circumstances of this case, that such an outcome is fair to all parties.
[242] The delay in hearing this matter was caused by a successful application of the Applicants that the unfair dismissal proceedings not occur until such time as the Federal Court proceedings (which did not involve the Applicants but involved other employees from Visy) were complete (the set aside decision). Visy opposed that application. Despite this it was granted. Had the application of the Applicants not been successful in that application the hearing with respect to the dismissal would have occurred some substantial time ago. Visy should not be disadvantaged by that delay.
Order to restore lost pay
[243] The Applicants seeks an order that each should be paid an amount for lost pay.
[244] Section 391(3) and (4) of the FW Act state as follows:
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
Mr Rustemovski
[245] Mr Rustemovski gave evidence that he has not worked since he was dismissed. Following his dismissal his family relied on his wife’s and son’s income.
[246] Mr Rustemovski said that he has undertaken training in civil construction and building and has sought work but has not been able to secure employment. He says that his dismissal has been hard financially on his family and he has had to borrow money from his parents to get by.
[247] Mr Rustemovski has applied for a number of positions. 122 A review of those applications suggests that the positions were sought in 2019 with no evidence of job applications being made prior to this year.
Mr Ahmadyar
[248] Mr Ahmadyar said that since his dismissal he has suffered from anxiety and depression. He says that since the dismissal he has not sought other work from a fear of being rejected because of the reason for his dismissal. He also gave evidence that he has taken full time responsibility for caring for his mother. Prior to his dismissal this was done by his brother. His brother found employment, so he has taken over the care of his mother.
Consideration
[249] Ms Sweet argued against reinstatement and did not address what should be done with respect to lost pay should I find that reinstatement is appropriate. Ms Sweet did, however, make submissions in relation to compensation as a remedy. I take from those submissions a general view that the decision of the Applicants to seek to have the original directions with respect to the hearing of the unfair dismissal set aside pending the resolution of the Federal Court proceedings should not go against Visy. She said that, in the set aside decision, it was said that:
[25] The representative of the Applicants says that the Applicants accept that any delay in accessing potential entitlements under the FW Act is due to their own application for a stay and they accept the consequences of this. 123
[250] Ms Sweet suggests that this concession by the Applicants sounded like the Applicants were accepting that “if there is a delay the costs of that delay in the sense of compensation or back pay would not be visited upon Visy”. 124
[251] The directions that were set aside by me in Ahmadyar & anor v Visy Board Pty Limited T/A Visy Board 125 required the parties to file materials by October 2017. The matters were scheduled at that time for hearing before a member of the Commission in the week beginning 4 December 2017.126
[252] As a result of the set aside decision the application for relief from unfair dismissal was not heard until 11 June 2019 – a delay of some 18 months. In effect Ms Sweet says that Visy should not be required to bear this cost.
[253] I have found that the Applicants were unfairly dismissed. In particular I have found that there was no valid reason for their dismissal. In these circumstances I am not convinced the Applicants should bear the totality of the cost of the delay.
[254] I accept that each Applicant was ready and available to return to work at Visy at all times. Mr Ahmadyar’s evidence, to the extent it might suggest unavailability because he is caring for his mother, suggests that this arrangement could be altered so that his brother would resume that care while he returned to work.
[255] Mr Rustemovski was always available to return to work with Visy – having entered into study to broaden his skill base.
[256] I accept that the ability to return to work by the Applicants was affected by the delay in hearing this application which was caused by the granting of the set aside application.
[257] I have taken all of these matters into account and have determined that Visy should backpay to the Applicants an amount equivalent to six months’ pay. I accept the delay in finalising these applications is 18 months and consider the Applicants should not have the total benefit of that delay nor carry the entire cost. I have also taken into account that the Applicants were players in the drama that led to their dismissals. To this extent I have taken into account that they were AMWU delegates, they were respected as such and could have held some sway over the workers even though the action may not have been arranged by them. I consider six months’ pay reasonable in all of these circumstances. I have taken into account the individual circumstances of each of the Applicants but see no reason to provide a differential outcome to them.
[258] The amount of lost earnings I have determined should be paid should be based on what the Applicants each would have earned had they been employed for the six month period immediately prior to the date of reinstatement. Lost earnings should include an amount for overtime reasonably expected to have been accepted by each of the Applicants. This should be calculated based on their histories of accepting overtime offered and the overtime actually available in the previous six months. Visy relies on overtime to meet its production schedules and the Applicants should not be denied this. Superannuation is an important component of remuneration and should also be paid.
Conclusion as to remedy
[259] I will issue two interim orders with this decision.
[260] The first interim order 127 I intend to issue is that:
1. Mr Ahmadyar is to be reinstated to his employment with Visy and reappointed to the position he held prior to his dismissal or an equivalent position at the Visy Dandenong site;
2. Reinstatement is to be effective three weeks from the date of this order;
3. Mr Ahmadyar is to have his continuity of service maintained;
4. Visy is to pay to Mr Ahmadyar an amount equivalent to what he would have earned had his employment not been terminated in the six months prior to reinstatement;
5. Visy and Mr Ahmadyar (and/or his representative) are to determine the precise amount of lost remuneration which should include wages and superannuation calculated in accordance with this decision;
6. A final order will be issued when the amount of lost remuneration is advised to the Commission.
[261] The second interim order 128 I intend to issue is that:
1. Mr Rustemovski is to be reinstated to his employment with Visy and reappointed to the position he held prior to his dismissal or an equivalent position at the Visy Dandenong site;
2. Reinstatement is to be effective three weeks from the date of this order;
3. Mr Rustemovski is to have his continuity of service maintained;
4. Visy is to pay to Mr Rustemovski an amount equivalent to what he would have earned had his employment not been terminated in the six months prior to reinstatement;
5. Visy and Mr Rustemovski (and/or his representative) are to determine the precise amount of lost remuneration which should include wages and superannuation calculated in accordance with this decision;
6. A final order will be issued when the amount of lost remuneration is advised to the Commission.
[262] The parties are directed to confer on the actual amount of lost remuneration to be paid and advise my chambers of this amount for each Applicant within two weeks of the issue of this decision.
[263] The parties may confer on any other aspect of the interim orders and seek a consent variation to the order (the order will otherwise not be subject to change) within two weeks of the issue of the orders.
[264] Final orders will be issued on receipt of the lost remuneration figures.
COMMISSIONER
Appearances:
M. Harding, of counsel¸ for the Applicants.
R. Sweet, of counsel, for the Respondent.
Hearing details:
2019:
Melbourne:
June, 11-14, 17-20.
July, 24.
Printed by authority of the Commonwealth Government Printer
<PR711903>
1 Exhibit A5, attachment UR-2.
2 Exhibit A5, attachment UR-5.
3 See Ambulance Victoria v United Voice (2014) 245 IR 375 at [20].
4 [1938] 60 CLR 336 at 362.
5 Transcript, PN7686.
6 See Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia& Ors (1998) 81 IR 15 at 22; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Ltd [2011] FWAFB 4777 at 22; Abigroup Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union & Anor[2012] FWA 7654 at 73.
7 Exhibit A4.
8 Transcript, PN2050-PN2051.
9 Transcript, PN2195.
10 Exhibit R18, paragraph 10.
11 Transcript, PN3384.
12 Transcript, PN3448-PN3459.
13 See Visy (Smithfield, Warwick Farm, Dandenong, O’Connor) Enterprise Agreement 2016 clause 11 and Graphic Arts, Printing and Publishing Award 2010 clause25.2(b). The overtime meal allowance is only payable where overtime is worked without notification on the previous day or earlier.
14 Exhibit R9.
15 Exhibit R18, attachment SA-6. Note that this data was summarised into a table by the Applicants which, with some slight variation, was agreed by Visy. To the extent any errors might effect the percentages provided the differences do not alter the conclusions.
16 Transcript, PN2309-PN2310.
17 Walkeden.
18 White, Vukelic.
19 White, Dalipovski , Vukelic.
20 White, Milianos, Cook, Petta, Vukelic, Dalipovski.
21 White, Myint, Baldassarini.
22 White, Dalipovski, Baldassarini.
23 Delfin, Walkeden, White, Dalipovski, Milianos, Petta, Cook, White, Lumani, Jacobsen.
24 Baldassarini, White.
25 Jacobsen, White, Lumani, Petta.
26 Dalipovski, Ragusa, Markovic.
27 Whilst the CCTV footage was provided in the material of Visy it was not able to be viewed in the case due to the grainy image.
28 See Exhibit R5, attachment SK-1, photograph R29.4
29 Transcript, PN3643-PN3649.
30 Transcript, PN3996-PN3997.
31 Transcript, PN4187.
32 Exhibit A10, paragraph 47.
33 Ibid, paragraph 51.
34 Transcript, PN5401.
35 Exhibit R16, paragraph 8.
36 Transcript PN2839.
37 Exhibit R15, paragraph 39.
38 Exhibit R8.
39 Exhibit R12.
40 Exhibit R23.
41 Exhibit R17.
42 Exhibit R3.
43 Exhibit R4.
44 Exhibit R4 says 24 August 2017 but it is not contested that he was referring to 24 July 2017.
45 Transcript, PN3000-PN3004.
46 Transcript, PN3045-PN3048.
47 Transcript, PN3054.
48 Transcript, PN1861.
49 Exhibit R5, attachment SK-10.
50 While Visy produced the footage, due to the grainy images it was not possible to identify the employees in the video.
51 Exhibit R11, paragraph 11.
52 Exhibit R11, attachment ST-4.
53 See, for example, transcript PN5377 and PN5384.
54 Exhibit R14, paragraph 12.
55 Exhibit R14, paragraph 15.
56 Exhibit R1, attachment JB-4.
57 Exhibit R15, paragraph 39.
58 Transcript, PN3036.
59 Transcript, PN5982.
60 Transcript, PN5940.
61 Transcript, PN3903.
62 Transcript, PN3694.
63 Transcript, PN2288.
64 Transcript, PN5207. Note that the “Thursday” was 20 July 2017.
65 Exhibit R1, paragraph 9.
66 Mr Bull said this in his written statement but changed this to “driveway” prior to swearing to his written statement; Transcript, PN5943.
67 Exhibit R1, paragraph 36.
68 Transcript, PN202.
69 Transcript, PN294 and PN299.
70 Exhibit R5, attachment SK-2 to SK-12.
71 Transcript, PN251-PN252.
72 Transcript, PN390.
73 Transcript, PN395-PN396.
74 Transcript PN458.
75 Exhibit R1, paragraphs 39-40.
76 Exhibit R1, paragraph 46.
77 Exhibit R1, paragraph 51.
78 Transcript PN702 and PN709.
79 Transcript PN726.
80 Exhibit A2.
81 Transcript, PN746, PN748 and PN751.
82 Exhibit R5, attachments SK-2 to SK-12 and SK-14.
83 Transcript, PN825-PN730.
84 Transcript, PN787.
85 Transcript, PN865-PN866.
86 Transcript, PN858-PN863.
87 Transcript, PN867-PN868.
88 Transcript, PN776.
89 Transcript, PN780.
90 Exhibit R5, attachment SK-12 and SK-14.
91 PR915674.
92 Roads Corporation v Dacakis [1995] 2 VR 508 cited in A Smith and others v Moore Paragon Australia Ltd PR915674 at [46].
93 See note 15, above.
94 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
95 [2014] FWCFB 7198.
96 [2013] FWC 8734
97 Exhibit R1, paragraphs 64-66.
98 Transcript, PN468.
99 Exhibit R14, paragraphs 27-28.
100 Ibid, paragraph 29.
101 Ibid, paragraph 31.
102 AE423614.
103 Exhibit R5, paragraphs 42-44.
104 Transcript PN884, PN887 and PN900-PN901.
105 Transcript PN893.
106 Transcript PN905.
107 Transcript PN911.
108 Exhibit R15, paragraphs 56-57.
109 Ibid, paragraph 58.
110 Transcript PN2802.
111 Exhibit R18, paragraphs 29-31.
112 Exhibit R11, paragraph 15.
113 Brambleby v Australian Postal Corporation T/A Australia Post [2014] FWCFB 9000 at [56].
114 Clause 4.2 of the Agreement.
115 Relied on by Mr Thapliyal, Mr Kopel, Mr Harmer and Mr Beaton as a reason to not reinstate the Applicants.
116 Transcript PN492.
117 Transcript PN489.
118 The Commission understands that this was post the dismissal of Mr Ahmadyar but this was not subject to any submissions or evidence.
119 Transcript PN491.
120 Exhibit R14, paragraph 27.
121 Transcript PN2066-PN2069.
122 Exhibit A8.
123 Ahmadyar & anor v Visy Board Pty Limited T/A Visy Board [2017] FWC 6463.
124 Transcript PN7915.
125 [2017] FWC 6463.
126 Each application was listed separately but both for the same week. It was later agreed to hear the applications together.
127 PR712452
128 PR712454
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