Francisco Ozzimo v Australian Postal Corporation T/A Australia Post - [2011] FWA 7831

[2011] FWA 7831

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francisco Ozzimo
v
Australian Postal Corporation T/A Australia Post
(U2010/13616)

COMMISSIONER GAY

MELBOURNE, 30 NOVEMBER 2011

Termination of employment - arbitration.

[1] On 26 October 2010 Mr Francisco Ozzimo (the Applicant) made application pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief following the termination of his employment by Australian Postal Corporation (Australia Post, the Respondent). Mr Ozzimo had worked at Australia Post since 1988, first in Victoria and then in Queensland, as a Postal Transport Officer. In this role from 1994 he performed duties as an interstate, or ‘line-haul’, truck driver carting mail to a range of destinations from Australia Post’s Underwood depot near Brisbane. Mr Ozzimo drove large ‘B-double’ trucks; having two trailers drawn behind the prime-mover, which houses the driving compartment and the engine.

The Advocates

[2] A number of advocates appeared for Mr Ozzimo during the course of the lengthy proceedings, Ms S Keating, Ms L Young, Mr S Lavarch, and for the principal presentation of the case, Mr J Fenton of Counsel, all appeared by permission. For the Respondent, Ms S Hodgers, Mr A Talbot and Mr P Sparrow of Australia Post appeared with Ms K Garner of Counsel, by permission.

The Termination

[3] Mr Ozzimo was dismissed as a result of Australia Post’s view that he had breached the ethical standards which apply to all Australia Post employees and which are set out in a corporate policy termed It’s Your Business - Our Ethics. An Australia Post letter of 20 October 2010 advised Mr Ozzimo of the termination of his employment with effect from the next day and also set out the view of Australia Post that Mr Ozzimo’s conduct had, additionally, been found to involve breaches of the Australia Post Harassment Discrimination Bullying Policy. The breaches of ethical standards and misconduct a consequence of bullying arose by virtue of conduct in relation to and directed towards, a fellow Australia Post line-haul driver, Mr Jeff Donnellan.

[4] The 20 October 2010 letter set down in some detail the part of Australia Post’s Our Ethics policy said to have been breached by Mr Ozzimo. By way of prime example, Mr Ozzimo was found to have breached the ethical standards required insofar as two truck handovers at Dubbo, New South Wales were concerned, which had required Mr Ozzimo to come into contact with Mr Donnellan. The ethical standards deriving from the Policy and said to have been breached included:

● By discriminating, harassing or bullying anyone at work, during any work organised social activity.

● By causing disadvantage, discomfort, embarrassment or offence to others in the workplace.

● By intimidating, offending or misleading customers, colleagues, suppliers or the public in any manner or form.

● By engaging in activity that may present a hazard to others.

● By performing a reckless act or omission which causes or could cause significant damage or harm and which would adversely affect the employment relationship.

● By intentionally causing damage to Australia Post’s interests,employee relations or public reputation.

[5] Mr Ozzimo was told his behaviour breached his responsibility to treat everyone with courtesy and respect at all times, to perform all work safely, to comply with Australia Post policies and procedures and exercise due care in the performance of his work.

The Investigation

[6] Two Australia Post Officers, Ms T Worldon and Mr A Wendt (hereafter referred to as the Investigators), were delegated by a senior Australia Post authority figure, Mr William Mark Wilson, the Queensland State Manager for Mail, Network and Postal Transport, to conduct an investigation into matters complained of by Mr Donnellan. Their investigation, termed a Central Investigation Process (CIP), after a lengthy period produced a substantial report (Exhibit AP6, the Report) into allegations that Australia Post’s policy proscribing bullying and harassment, and that seeking to ensure high ethical standards were maintained, had been breached at the Underwood depot, insofar as Mr Donnellan was concerned, by seven Australia Post employees, including Mr Ozzimo. The Report into the conduct of the Underwood employees was given to Mr Wilson together with recommendations for various courses of action. Many, but not all, of the allegations brought against the seven employees were found by the Investigators to be substantiated.

[7] The Investigators’ recommendations included reviewing operational procedures and management effectiveness at Underwood and the consequences for each of the employees found to have bullied, harassed or otherwise misconducted themselves. For the employees found to have been so involved at Underwood the recommendations included reduction of pay increments, transfer to different, less remunerative duties at other locations and, in the case of Mr Ozzimo and one other employee, dismissal. Mr Wilson considered the recommendation and in Mr Ozzimo’s case determined that his employment be terminated.

The Scope of the Case

[8] This case was, despite its broad contextual setting, solely concerned with the termination of Mr Ozzimo’s employment and I have not trenched into the other aspects of Australia Post’s dealings with the remaining six Underwood employees caught up in the allegations and inquiry. While the Report (of hundreds of pages) was tendered, and I have read its treatment of the many behavioural allegations concerning the other Underwood employees, and all allegedly referable to Mr Donnellan, this case turns only on the matters involving Mr Ozzimo.

[9] I have not understood the Australia Post case put in answer to that of Mr Ozzimo to rely on the other matters which involve Underwood employees in alleged bullying to also weigh collectively against Mr Ozzimo. To avoid any doubt I have accepted Mr Fenton’s submission for Mr Ozzimo, that if Australia Post cannot establish the guilt of Mr Ozzimo, in having acted in one, or some or all of the ways set out in the relevant allegations, then the charges of misconduct against him as having breached the various Australia Post policies must fall away.

The Witnesses

[10] In support of the application, the following witnesses gave evidence:

● Mr Francisco Ozzimo, the Applicant;

● Mr Richard Prestipino; and

● Mr Russell John Smith, both Underwood line-haul drivers.

[11] For Australia Post:

● Mr Thomas David Cray, the Australia Post Postal Transport Coordinator at the Underwood depot;

● Mr Michael Craig Hill a Postal Coordinator involved in the operational functioning of the Underwood depot;

● the person with principal responsibility for the investigation and the Report, Ms Tamara Worldon - Australia Post’s Manager Staffing Services People and Community;

● Mr Jeffrey William Donnellan currently an Australia Post line-haul truck driver operating from the Underwood depot;

● Mr William Mark Wilson Australia Post’s Queensland Operations Manager for Mail, Network and Transport; and

● Mr Gary John Smith a Postal Transport Officer based at the Underwood depot.

The s.396 Matters

[12] Prior to considering the merits of the application Fair Work Australia must decide various matters in satisfaction of s.396. Accordingly, I first considered whether the application satisfied s.394(2), that is, whether it was filed within time. I concluded it had been lodged within time.

[13] Second, it was necessary to consider whether Mr Ozzimo was protected from unfair dismissal. A person is protected when s.382(a) and (b) are satisfied. I concluded that Mr Ozzimo’s very lengthy service satisfied s.382a) and s.382(b)(ii) and (iii) applied.

[14] As to s.396(c) I considered that the Small Business Fair Dismissal Code did not apply to Australia Post.

[15] As to s.396(d) I considered that Mr Ozzimo’s dismissal was not a case of genuine redundancy.

[16] As a result of deciding the s.396 matters in the way outlined Fair Work Australia was able to move to consider the merits of the application.

[17] In the light of all the information before me by virtue of the Directions previously issued I considered it necessary pursuant to s.399(1) to hold a hearing.

The Hearing

[18] The case was heard in Brisbane over ten days, extending from 15 March 2011 to 30 June 2011. At the outset of proceedings the parties participated with me in conciliation discussions directed solely at the capacity for an agreed resolution rather than to the merits of the respective cases and which, despite earnest efforts, was to prove unsuccessful.

[19] As will become clear from a summary and consideration of the evidence, a great deal of detailed material was dealt with in the CIP investigation and formed part of Australia Post’s consideration as centrally relevant to its decision to terminate Mr Ozzimo’s employment. In the course of this case much of that detailed material, including telephone records, truck satellite tracking reports, rosters and the interviews of staff, and statements and evidence of the witnesses was called upon. I have sought to refer to only some aspects of that considerable bulk of material and evidence which has led to my reaching the necessary conclusions.

[20] In a closely contested case careful attention was necessarily paid not only to the evidence given but to the minutiae provided by computer records of the global positioning of trucks by satellite, of the time and duration of certain telephone calls made from Australia Post official telephones issued to the drivers and the telephones registering at way-stations as establishing place and time, which, in turn, buttressed or failed to support, some position which was advanced. I will endeavour to set out the reliance that has been placed on these technological aids. It is not proposed however to canvass all the detailed debate as to the meanings of the various reports containing the welter of information such systems generate. Non-repetition in this decision should not be taken as reflecting that an argument or exhibit was not considered.

Case Management

[21] Early in the case unusual difficulties emerged as to case management matters, compliance with directions and Australia Post’s final nomination of those witnesses it chose to call. Although a delay in proceedings was the consequence, and only one of several, Australia Post were permitted to introduce two further witnesses, Ms Worldon and Mr Wilson just prior to the commencement of Mr Ozzimo’s case. Procedural steps were sought to be taken to ensure no prejudice resulted for Mr Ozzimo. It was regrettable that the indecision which was evident should have affected the case put in response by Australia Post and, of course, that of the Applicant. Ultimately the evidence put was helpful in understanding both parties’ cases.

The Identification of those Interviewed by the Investigators

[22] Concern also arose over the admission into evidence of a list (Exhibit AP6) of named Australia Post employees who had been interviewed by Ms Worldon and her investigating colleague for the purpose of compiling the Report. Australia Post sought for code numbers to be substituted in the hearing for the names of the employees. It was suggested that some of the employees who had responded to the Investigators had done so under a promise of anonymity. There was also an additional submission put, that there existed fear of retribution should the employee’s names become public and their participation in the enquiry leading to the Report become known.

[23] Unsurprisingly, Mr Fenton objected to the course of anonymity proposed by Australia Post. Eventually it was agreed between Counsel that Mr Fenton and Mr Ozzimo’s other legal advisors be given unrestricted access to the list of named participants, including the respective code numbers used to identify them in Ms Worldon’s statement. Prior to the point in the case when Mr Fenton’s cross-examinations may have required the names of the various employees to be disclosed, Australia Post withdrew its objection to the names being freely aired. As events transpired Mr Fenton’s interest in the Australia Post employees who had participated in the enquiry was limited to those involved in the events relied upon by Australia Post in dismissing Mr Ozzimo.

The Task of Fair Work Australia

[24] In my view it is worth recording, prior to setting out the cases of Mr Ozzimo and that of Australia Post, that my principal task is not to sit in review of the CIP investigation conducted by Ms Worldon, or place myself on enquiry, subject to the considerations given at paragraph 270 below, as to the management strengths or inadequacies of the Australia Post officers at Underwood involved in overseeing Mr Ozzimo and his workmates (including Mr Donnellan) over the period in question. Nor is the task of Fair Work Australia to resolve the Application by determining whether it was reasonably open to Australia Post to form the views it did as to Mr Ozzimo (King v Freshmore (Vic) Pty Ltd,, Print S4213, 17 March 2000 per Ross VP, Williams SDP and Hingley C). The function here to be performed is the determination, by reference to the statutory criteria and the objects of this part of the Act, and having regard for material and evidence considered relevant at arbitration, whether Australia Post’s termination of Mr Ozzimo’s employment was harsh, unjust or unreasonable; whether a consideration of all those relevancies gives rise to a valid reason. Any later discussion of ‘misconduct’, in varying degree, is not intended to overshadow or substitute for the statutory test.

[25] In this regard the method deriving from the Act used to decide whether there existed a valid reason for the employer’s actions includes those matters set out at s.387 and now reproduced below. It will be appreciated that the Act’s principal objects and the objects of this part of the Act, including the s.381(2) ‘fair go all round’ injunction, also inform the consideration that is to be given.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that FWA considers relevant.”

The Background

[26] The behaviours and activities of some Australia Post employees at the Underwood Mail Centre, both drivers and depot workers, came to be the subject of Australia Post’s investigation following an encounter in mid 2009 between Mr Donnellan and a fellow Australia Post Underwood employee Mr Allan Mercer. The encounter arose after Mr Allan Mercer (one of two brothers working at Underwood) supported the determination of another Underwood employee, Mr Stephen Hayes (rendered Steven in the allegations), to not change a truck’s tyre when requested to do so. Mr Donnellan was working with Mr Hayes on the shift in question and it was Mr Donnellan’s view that the tyre could be changed at Underwood rather than it be necessary to bring in outside contractors to perform that duty. Mr Donnellan changed or assisted in changing the tyre.

[27] Australia Post had reason, after the tyre-changing incident, to review the actions of Mr Allan Mercer who had later remonstrated with Mr Donnellan in the Australia Post carpark. It was said that Mr Allan Mercer had ‘obtained’ a copy of an internal Australia Post document relating to the tyre changing matter. Upon review by Australia Post Mr Allan Mercer was found to have breached Australia Post policy concerning bullying and harassment in the manner of his subsequent aggressive behaviour toward Mr Donnellan. It seems that the Australia Post letter disciplining Mr Hayes contained reference to Mr Donnellan. At the time Mr Donnellan had made no complaint against Mr Allan Mercer and Mr Donnellan is not said to have misconducted himself in any way.

[28] Mr Allan Mercer was transferred to another Australia Post base, but on appeal to an Australia Post Board of Reference was later permitted to remain at Underwood with the lessened penalty of reduction in salary for twelve months. It is common ground that Mr Allan Mercer and Mr Ozzimo are friends.

The Harassment and Bullying

[29] It is the Australia Post submission that from this time Mr Donnellan received hostile treatment from a coterie of drivers and mail centre workers at Underwood who were friendly with Mr Allan Mercer. Mr Ozzimo was numbered amongst this group. Included also was Mr Allan Mercer’s brother, Mr Peter Mercer, whose role at the Underwood depot as ‘custodian’ of the loading dock of the B-double trucks meant, in the view subsequently articulated by Australia Post, that by subtle means, steps in relation to loading a B-double’s trailers, could readily be taken to favour or to operationally disadvantage a line-haul driver’s on-time departure. It will be appreciated that postal line-haul drivers and their supervisors take timely mail departures very seriously.

[30] The investigation will be the subject of further description and comment below. It is necessary for present purposes to record that the series of ‘allegations’ were levelled at seven employees and, insofar as Mr Ozzimo was concerned, the process adopted can be described in the following fashion.

The Allegation Correspondence

[31] On 9 December 2009 Australia Post wrote to Mr Ozzimo advising him of an investigation underway in relation to a complaint of bullying and victimisation made against him by Mr Donnellan. The letter, signed by Mr Stephen Lawrence, Australia Post’s ‘Process Manager’ was headed ‘CONFIDENTIAL - Complaints of Bullying and Victimisation - Central Investigation Process’, (Attachment FO-1 to Mr Ozzimo’s Witness Statement of 6 January 2011, Exhibit O1). On 10 December 2009 Mr Lawrence again wrote to Mr Ozzimo, correcting an error in citing the date on which one of the acts complained of by Australia Post was said to have occurred. Mr Ozzimo was required to attend an interview with Australia Post’s two named Investigators some five days later. Their task was given as being “... to determine if there is substance to the allegations”.

[32] Mr Ozzimo was also advised of his capacity to bring an observer, who might be a union representative and of the opportunity being available to Mr Ozzimo at the interview “... to respond to, answer, and advance arguments against, the allegation/s raised against you”. Within the 9 December 2009 correspondence was also enclosed Australia Post’s further information as follows:

Information Sheet H4: ‘What to do if someone complains about you.’

Brochure: ‘What if I’m involved in a harassment discrimination bullying complaint?’

Document: General Advice for Parties to a Harassment Discrimination Bullying Complaint.

[33] It was recommended that Mr Ozzimo read the above information. The 9 December correspondence also advised that Mr Ozzimo should be aware that in the event of the ‘Investigation Team’ finding any of the allegations to be substantiated they would then consider whether the conduct of Mr Ozzimo constituted breach of the Australia Post Harassment Discrimination Bullying Policy and Australia Post’s Our Ethics. In that event Mr Ozzimo was further advised that he may be subject to counselling or disciplinary action according to Australia Post’s Employee Counselling and Discipline Process which could result in the Investigators recommending a range of penalties which included dismissal.

[34] Mr Ozzimo was also advised that Australia Post required that he ‘maintain confidentiality’, essentially meaning he could only discuss the matters the subject of complaint (which, in a Kafkaesque phrase was termed “your complaint”) with the Investigators, an Australia Post functionary termed the Diversity or Complaints Manager, the author of the letter whose official title was given as “Process Manager and Delegate”, and in circumscribed terms, with “a professional adviser or members of your immediate family”.

[35] The letter also offered assistance from the Australia Post Employee Assistance Program and from the Process Manager. Mr Ozzimo was also alerted, in neutral terms, to the consequence under Australia Post’s Harassment Discrimination Bullying Policy should a person who is, or has been, involved in a harassment, discrimination or bullying complaint be subjected or be under threat of being subjected to any form of disadvantage. Such a subjector was open to discipline under the relevant Australia Post policy.

[36] On 9 April 2010 Australia Post wrote advising Mr Ozzimo of an additional allegation concerning alleged inappropriate behaviour by Mr Ozzimo and requiring him to attend for a further interview on 14 April 2010. The further allegation related to a Dubbo handover where on 18 January 2010 Mr Ozzimo had been the passenger in a truck driven from Underwood to Dubbo which was then to return to Underwood on which leg it would be driven by Mr Donnellan. All the allegations against Mr Ozzimo are set out below.

The 2009 Allegations Specified

[37] Attached to the correspondence of 9 December 2009 were the allegations, set out as follows:

“Allegation 1

It is alleged that Mr Francicso (sic) Ozzimo engaged in bullying behaviour and victimisation through vindictive, targeted monitoring of Mr Jeff Donnellan’s activities intended to result in adverse action against Mr Donnellan, with a view to retribution for Mr Donnellan’s perceived involvement in action taken under the Employee Counselling and Discipline Process for inappropriate behaviour by Mr Allan Mercer and Mr Steven Hayes.

Specifically:

a. It is alleged that on 11 September 2009 between 20:45pm and 02:00am (of the 12 September 2009) in the Underwood Transport Depot lunchroom and smokers shed Mr Francisco Ozzimo, gloated to staff that “we have got him”, making reference to Mr Jeff Donnellan.

b. It is alleged that on the 12 and 13 September 2009 Mr Francisco Ozzimo approached the PTC3 supervisor, Mick Hill to get MT Thomas Crays’ personal phone number, in an attempt to contact Mr Crays to get information from Mr Crays regarding his recording of an incident involving Mr Donnellan on 11 September 2009. (sic)

Allegation 2

It is alleged that Mr Francisco Ozzimo engaged in bullying behaviour and victimisation by gossiping and spreading malicious rumours about Mr Jeff Donnellan in an attempt to cause harm to Mr Donnellan’s character and credibility, with a view to retribution for Mr Donnellan’s perceived involvement in action taken under the Employee Counselling and Discipline Process for inappropriate behaviour by Mr Allan Mercer and Mr Steven Hayes.

Specifically:

a. It is alleged that during June 2009, Mr Francisco Ozzimo, engaged in slanderous behaviour regarding Mr Jeff Donnellan by telling fellow employees at the Underwood Transport Depot and interstate drivers words to the effect that Mr Donnellan “was in the shit”, “was a dog”, “could not be trusted” and that Mr Ozzimo “hoped Mr Donnellan would get cancer”.

Allegation 3

It is alleged that Mr Francisco Ozzimo engaged in bullying behaviour and victimisation by failing to follow correct procedures in an attempt to disrupt and frustrate Mr Jeff Donnellan and not allow Mr Donnellan to complete his duties appropriately/ as per standard practice, with view to retribution for Mr Donnellan’s perceived involvement in action taken under the Employee Counselling and Discipline Process for inappropriate behaviour by Mr Allan Mercer and Mr Steven Hayes.

Specifically:

a. It is alleged that on 30 July 2009 at approximately 1:30am at the Dubbo, NSW vehicle handover point on the Mitchell Highway, on vehicle handover, Mr Francisco Ozzimo (the arriving driver) left the vehicle door open and proceeded to walk off down the road failing to: (i) check the vehicle’s tyres or conduct a post drive check; (ii) adequately advise Mr Jeff Donnellan (the departing driver) of the vehicle’s condition and safety; and (iii) unhitch the ex-Brisbane trailers and hitch the ex-Melbourne trailers onto the Brisbane prime mover, as per the normal custom and practice line haul vehicle handover.

b. It is alleged that on 17 September 2009 at approximately 10:00am at the Central Queensland Mail Centre (CQMC), Mr Francisco Ozzimo left his truck parked in the middle of the CQMC dock intentionally, so that Mr Jeff Donnellan was unable to park his truck in this location on the CQMC dock and offload the mail from his truck when he arrived at 10:30am as per normal custom and practice.

c. It is alleged that on 18 September 2009 at approximately 23:30pm at the Central Queensland Mail Centre (CQMC), Mr Francisco Ozzimo failed to move Mr Jeff Donnellan’s truck onto the appropriate location on the CQMC dock so that it could be loaded at the request of the CQMC MPC1.”

The 2010 Allegation made against Mr Ozzimo was:

Attachment 1

“Allegation 3

Specifically:

d. It is alleged that on 18 January 2010 at approximately 12:30pm at the NSW vehicle handover point on the Mitchell Highway at Dubbo, on vehicle handover, Mr Frank Ozzimo presented a faulted vehicle to Mr Jeff Donnellan, in particular you failed to: (i) have mechanical issues with truck VX283 addressed during the trip to Dubbo, (ii) adequately advise Mr Jeff Donnellan (the departing driver) of the vehicle’s condition and safety and (iii) hitch the ex-Melbourne trailers onto the Brisbane prime mover, as per the custom and practice line haul vehicle handover procedure.”

[38] It will be noted that the further allegation, Allegation 3 d., related to an alleged action of Mr Ozzimo subsequent to the commencement of the Australia Post investigation.

The Findings of the Investigators

[39] On 1 October 2010 Mr Wilson wrote to Mr Ozzimo (Exhibit O1, Attachment FO4) advising of the conclusion of Australia Post’s investigation into the complaint of misconduct and bullying made against him. Attached to the letter were thirteen pages of “Findings Against Specific Allegations” setting out each of the Allegations made against Mr Ozzimo, the ‘Evidence and Considerations’ in point form relevant to each Allegation and setting out the conclusion arrived at, followed in each instance, with a one sentence ‘Finding’, wherein the Investigators stated the determination, or ‘Finding’, whether or not each Allegation had been substantiated.

[40] The letter contained a chart, reproduced below, summarising the findings of the Investigators, setting out the further recommendations made by the Investigators and advising that Mr Wilson would be in touch in the near future as to action Australia Post intended to take further to the Employee Counselling and Discipline Process and Mr Ozzimo’s rights in that regard. Mr Wilson also advised Mr Ozzimo that he had considered and agreed with the findings made by the Investigation Team.

Summary of Findings

Allegation	Specific Finding	Finding - Allegation of Bullying
ALLEGATION 1 (1C)	Substantiated	Substantiated
Allegation 2 (1e)	Not Substantiated	Not Substantiated
Allegation 3 (2a)	Substantiated	Substantiated
Allegation 4 (3a)	Substantiated	Substantiated
Allegation 5 (3d)	Not Substantiated	Not Substantiated
Allegation 6 (3e)	Substantiated	Substantiated
Allegation 7 (3f)	Substantiated	Substantiated

(Attachment FO4 to Exhibit O1)

[41] On 4 October 2010 Mr Wilson again wrote to Mr Ozzimo setting out in some detail Mr Ozzimo’s behavioural shortcomings reflected in the Investigators’ findings relative to the various ethical standards of Australia Post’s Our Ethics policy. Once again the five substantiated breaches were particularised.

[42] Mr Wilson advised that prior to coming to a final decision on the action to be taken under the Employee Counselling and Discipline Process, Mr Ozzimo or his representative could either write to Mr Wilson or seek a meeting as to the penalty recommended by the Investigation Team - dismissal from Australia Post. Mr Ozzimo took the opportunity to meet with Mr Wilson, with an Organiser of the Transport Workers’ Union of Australia.

[43] On 20 October 2010 Mr Wilson wrote to Mr Ozzimo setting out the five “substantiated specific allegations”, noting the fact that Australia Post had concluded that Mr Ozzimo had bullied Mr Donnellan and that there had been breaches of the Australia Post Our Ethics policy. Mr Wilson set out his conviction that the investigation had been fair and thorough, that Mr Ozzimo had had the opportunity to respond and that Mr Ozzimo’s serious and wilful misconduct had meant the employer-employee relationship had irretrievably broken down.

[44] In advising that Mr Ozzimo’s employment was to be terminated, Mr Wilson indicated that Mr Ozzimo was to receive an ex-gratia payment of two weeks’ pay.

The Evidence and Submissions

[45] It is proposed to deal with each allegation by setting out the competing contentions, evidence and submissions. I will deal with each allegation, comment as to the competing cases and give my determination as to whether the allegation is in my view made out. The two Dubbo handover matters are, for convenience, dealt with together last.

[46] Of the five complaints/allegations made against him Mr Ozzimo gave detailed evidence. In a general sense Mr Ozzimo denied all wrongdoing, averring that while he did not ‘trust’ Mr Donnellan, he could maintain and had maintained, a proper working relationship with him such that there could be no impediment to Mr Ozzimo’s return to work at Underwood.

[47] The allegations have unhelpfully been numbered in a series of ways since first featuring in Mr Lawrence’s 2009 correspondence. To avoid doubt I have continued to use the initial Australia Post numbering, conscious that Mr Wilson’s 20 October 2010 instrument of termination (Attachment FO6 to Mr Ozzimo’s first witness statement, Exhibit O1) adopts two methods of citation for the allegations.

Allegation 1 a.

[48] This is that “... on 11 September 2009 between 20.45 and 02.00 (of the 12 September 2009) in the Underwood Transport Depot lunchroom and smokers shed Mr Francisco Ozzimo gloated to staff that “we have got him”, making reference to Mr Jeff Donnellan”.

Mr Ozzimo’s Response to Allegation 1 a.

[49] Mr Ozzimo’s evidence was that on 14 December 2009 he had told Ms Worldon and Mr Wendt that he had not made the remark specified or “attributed to me” (Exhibit O1, paragraph 24). Mr Ozzimo’s evidence was that he had asked the Investigators what it was that he was alleged to have ‘got’ Mr Donnellan for, and had received no reply.

[50] Mr Ozzimo told the Investigators that he would have spoken to his workmates on the day in question but that he could not recollect the day given the passage of time. (See also Mr Ozzimo’s Statement in Reply of May 2011, Exhibit O3, paragraph 18.)

The Australia Post Grounds for Allegation 1 a.

● It was said that the rotating rosters meant that it was extremely rare for those involved, Mr Ozzimo and two of his colleagues, to be at the same place at the same time - in this instance, at the Underwood lunch room and smokers’ shed on 11 September 2009.

● It was said for Australia Post that, on the accounts of the two Ozzimo colleagues said to have participated in the conversation, that their movements around the muster room and making a hot drink preparatory to undertaking their duty, contributed to a finding, on the balance of probabilities, that a conversation occurred between Mr Ozzimo and his two colleagues. Australia Post noted that the comment “we have got him”, occurred within 24 hours of a complaint lodged against Mr Donnellan (later dismissed) by an Underwood employee on close terms with Mr Ozzimo and his 11 September purported gloaters.

● Mr Donnellan had advised the Australia Post Investigators that an Australia Post colleague had told of being present on 11 September at Underwood when Mr Ozzimo and his two colleagues had gloated to staff in the lunch room, that, “we’ve got him this time”, in reference to Mr Donnellan.

● The witness to the 11 September comment, Mr Elvery, told the Investigators that he could not specifically recall being present during the conversation. (Investigation Report Annexure TW-A to Mr Worldon’s Witness Statement, Exhibit AP5, page 23.)

● Mr Elvery had, however, on the day after the alleged conversation, 12 September 2009, telephoned Mr Morrison, the Underwood Manager, to advise of the statement having been made and of the attempts by the anti-Donnellan group at Underwood to ‘get’ Mr Donnellan at every opportunity.

● Mr Morrison made a file note on 15 September 2009 recording the fact of the report that “... they had got J Donnellan this time ...”. Mr Morrison advised the Investigators that he did not speak to any of the staff who may have heard or may have been involved because he felt the direct witness’ report was ‘second hand information and hearsay’.

● There is also an unsigned note (Annexure BR to Ms Worldon’s Statement, Exhibit AP5) which bore the Manager Underwood’s rubber date stamp and which reads “Received -5 October 2009”. The note describes the 11/9/09, “we’ve got him” conversation as involving Mr R Prestipino and Mr W Allard in the presence of the Australia Post employee who reported the conversation and the Australia Post Controller. Mr Ozzimo is not given as being present. The Australia Post case did not highlight Mr Elvery’s note. Mr Fenton did, submitting that the records are contradictory and one excludes Mr Ozzimo.

● None of the staff interviewed by the Investigators could recall the statement being made as alleged.

The Australia Post Conclusion as to Allegation 1 a.

[51] Australia Post concluded that, despite the witness to the comment being unable to specifically recall the incident, some three months having passed at the time of interview, there was on the balance of probability a basis for concluding that a conversation had occurred in the vicinity of the lunchroom. Australia Post relied on the witness’ forgotten memory of the event as recorded and misdescribed as hearsay by the depot Manager, such that a conclusion could be reached that the comment had been made in a conversation involving Mr Ozzimo and his two colleagues. Australia Post came to this view; that Mr Ozzimo, with his two colleagues, had ‘collectively participated’ in the conversation when the statement “we have got him” was made in relation to Mr Donnellan.

Finding as to Allegation 1 c.

[52] I have agreed with Mr Fenton that there is an inadequate basis to sustain the allegation. While a file note was later made by the purported witness to a conversation on 11 September 2009, I have noted that, apparently, the fellow worker/witness, sufficiently concerned to alert Mr Morrison to the danger facing Mr Donnellan from those not well disposed toward him, had, some three months later, no memory of the events. Neither the witness to the conversation nor Mr Morrison gave evidence, although it was Mr Fenton’s submission that Mr Morrison spent several days observing the present proceedings. I am urged in this later respect, to draw a Jones v Dunkel inference (Jones v Dunkel (1959) 101 CLR 298) that Mr Morrison’s evidence, had it been given, would not have supported Australia Post’s submission as to the file note made by Mr Morrison (Annexure H to Ms Worldon’s Statement, Exhibit AP5) which sets out events over the period from 11 to 15 September 2009. In the end it is not necessary to do so.

[53] I have concluded that the 15 September 2009 email diary note of the series of inter-locking events is most unlikely to have been Mr Morrison’s imaginative work. There is however no evidence as to who actually made the comment - even on the oblique record of Mr Morrison. One is invited to assign Mr Ozzimo a sufficiently involved place in the conversation wherein the comment was made, such as to have he and his interlocutors each equally guilty for the remark.

[54] While there may be occasions when evidence of a disputed event or conversation be so detailed and soundly based as to permit such a finding and of apportioning individual guilt by ‘collective participation’, the current package of speculative accounts and postulations cannot approach that state of affairs. I have accepted Mr Fenton’s contention that without proof that Mr Ozzimo made the statement he ought not be assigned responsibility for it - other than perhaps, if it can be concluded, again, on a sound evidentiary basis, to have been adopted by Mr Ozzimo. There is no evidence before me of this. In my view these events and materials do not support a finding against Mr Ozzimo in the terms sought, as it cannot be clearly established on the balance of probability that the conversation occurred in the fashion asserted and that Mr Ozzimo’s participation was of the kind alleged. It follows that Allegation 1 a. is unable to be relied upon.

Allegation 2 a.

[55] The second allegation made against Mr Ozzimo which was found to be substantiated by Australia Post’s Investigators is set out below.

“Allegation 2

Specifically:

b. It is alleged that during June 2009, Mr Francisco Ozzimo, engaged in slanderous behaviour regarding Mr Jeff Donnellan by telling fellow employees at the Underwood Transport Depot and interstate drivers words to the effect that Mr Donnellan “was in the shit”, “was a dog”, “could not be trusted” and that Mr Ozzimo “hoped Mr Donnellan would get cancer”.”

The Australia Post Grounds

[56] It is a useful commencing point to note the distillation of the Australia Post position as to this allegation provided by Mr Wilson in the attachment headed Findings (Attachment 1) to the letter sent by Mr Wilson to Mr Ozzimo on 1 October 2010 (Annexure FO-4 to Mr Ozzimo’s Statement, Exhibit O1).

[57] Australia Post specified the basis of its substantiation that Mr Ozzimo had made the particular statements by advising its Investigators had noted that:

● Mr Ozzimo had told them he never spoke about anyone behind their back;

● Mr Ozzimo had told them at interview that he did not like Mr Donnellan and never had;

● Mr Ozzimo had been heard regularly “bagging out” Mr Donnellan - particularly as to the overtime Mr Donnellan worked;

● Mr Ozzimo had told a staff member that Mr Donnellan had made up the incident involving Mr Allan Mercer - implying Mr Donnellan was a liar; and

● Mr Ozzimo had a long-standing grudge against Mr Donnellan and had as a consequence considered it likely that Mr Ozzimo made derogatory comments behind Mr Donnellan’s back.

[58] It was noted that Mr Ozzimo denied making all such statements, other than that Mr Donnellan could not be trusted.

[59] Mr Wilson’s summary also noted that unreferenced “witness evidence” had confirmed that Mr Ozzimo had said Mr Donnellan was “a dog” and was “stirring up trouble”.

[60] After recording these things, Australia Post advised Mr Ozzimo that it had concluded that he had made “some of the alleged comments” which, in turn, represented Mr Ozzimo’s efforts to damage Mr Donnellan’s character and credibility in the eyes of other staff. Australia Post concluded, on the balance of probability, that allegation 2 a. was made out.

The Submissions as to Allegation 2 a.

[61] For the Applicant it was said that:

● Mr Ozzimo had deposed that he had not said such things and moreover, as to cancer, that a family connection with cancer meant that he would never say such a thing.

● The Respondent was able to locate one witness who told the Investigators that Mr Ozzimo had been heard ‘bagging out’ Mr Donnellan by saying that Mr Donnellan was stirring up trouble and that he was a ‘dog’ (Exhibit AP6, Annexure C, Witnesses Interviewed by the Investigation Team, Page 1). It was said that this had not been put to the Applicant and the named Australia Post witness/informant was not called to give evidence.

● As to the above comments, the Report (at page 68) reflects that none of the interstate drivers interviewed were able to confirm that the alleged comments had been made about Mr Donnellan.

● While the Investigators found a number of witnesses who said they were aware of rumours about the allegations, there was no-one who said they had heard Mr Ozzimo say Mr Donnellan was ‘in the shit’, ‘could not be trusted’ and that he hoped Mr Donnellan would get cancer.

● The nearest to slander shown against Mr Ozzimo was Mr Gary Smith’s statement that Mr Ozzimo said he was never going to speak with Mr Donnellan again.

● The Investigators had failed in their task in that, having regard for the widespread nature of Mr Donnellan’s allegations, only one witness could be found.

● The Investigators should have doubted Mr Donnellan’s credibility given the inability to substantiate much of what Mr Donnellan had asserted.

The Australia Post Allegation 2 a. Response

[62] Australia Post’s written submissions as to Allegation 2 a. set out a view that it was available to the Investigators to conclude, on the balance of probability, that Mr Ozzimo had engaged in the slanderous commentary alleged over Mr Donnellan. This assertion is said to be supported by the following:

● There is evidence of context and motive for Mr Ozzimo to have said the words alleged.

● There was acknowledgement from Mr Ozzimo that his view was that Mr Donnellan could not be trusted and that Mr Donnellan had exaggerated the original incident with Mr Allan Mercer which had resulted in Mr Mercer being disciplined.

● Mr Prestipino’s evidence was said to confirm that Mr Ozzimo did not like Mr Donnellan (TPN 3628) and that Mr Ozzimo had said that the Mercer incident and disciplining was based on “a bunch of lies” made up by Mr Donnellan (TPN 3634).

[63] Australia Post relied on a number of instances where Mr Ozzimo had spoken of Mr Donnellan as unable to be trusted so that, with this in mind, “it was reasonable for the Investigators to accept the evidence of witnesses to the effect that they over-heard the Applicant making such statements, in preference to the evidence of the Applicant.” (Exhibit AP18, Ms Garner’s written submissions 30 June 2011, paragraph 37).

Finding as to Allegation 2 a.

[64] Again, it should be understood that it is not sufficient for Australia Post to mount a case establishing that it was reasonably open for the Investigators to conclude Mr Ozzimo had said the alleged things. The function currently undertaken is not to review whether it was reasonably open to Mr Wilson, as the decision-maker, to come to the view he did or to accept the view put by his senior advisors who constituted the investigation team. I must, rather, consider on all the information available to me, that there was or was not a valid reason and whether applying s.387, taken as a whole, the termination was harsh, unjust or unreasonable (Watson v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685 line 20).

[65] It has been frequently recorded, that where the responsive action of an employer is based on an event, act or happening involving an employee and that occurrence is found by Fair Work Australia to have not occurred or to have not been the fault of the employee or to have been of a significantly lesser nature - the responsive action is undermined or necessarily negated. (See the majority decisions of the Full Court of the Federal Court in Edwards v Justice Giudice and others (1999) 94 FCR 561). So, in this case, it is necessary to make a finding of jurisdictional fact, as to whether Mr Ozzimo, on the evidence put before Fair Work Australia and on the balance of probability, did make the particular alleged utterances such as to engage in slanderous behaviour regarding Mr Donnellan.

[66] It must be said that on the whole of the evidence, but particularly that of Messrs Ozzimo, Prestipino and Donnellan, Mr Ozzimo clearly has a strong antipathy to Mr Donnellan. The totality of Mr Ozzimo’s evidence, other than several disavowals that I have not accepted, reflected that antipathy. When Mr Ozzimo was in the box that emotion infused everything Mr Ozzimo said about Mr Donnellan and was reflected in the irony of the comment, “I’ve got no problem with being in the same - even the same room as the man.” (TPN 1033). While Mr Ozzimo appeared to be cautious in restraining his language in giving expression to his feeling towards Mr Donnellan, his responses, his tone of voice and all associated indices by which one can assess attitude show the level of antipathy to be as described. It is given primary expression by Mr Ozzimo in his oft-repeated phrase of ‘not trusting’ Mr Donnellan. (And ‘trust’ is an important element in the mutual relationships of Australia Post long-distance truck drivers as will be further considered below.)

[67] ‘Not trusting’ is by no means a neutral expression and is one which found further voice, if one accepts, as I do, the evidence of Mr Wilson, that Mr Ozzimo told Mr Wilson that he (Mr Ozzimo) did not like Mr Donnellan. Mr Prestipino’s evidence was in similar terms. This is against Mr Ozzimo’s evidence, in various parts, for example when Ms Garner asked, “I suggest that you actively disliked him... No, No.” (TPN 942), and similarly, in response to the original Allan Mercer incident, “I didn’t blame anyone” (TPN 958), and further, “there was never a deliberate thing against Mr Donnellan” (TPN 1001), “I didn’t do anything deliberate” (TPN 1002).

[68] In its original form Allegation 2 a. comprised a broad slanderous behaviour charge against Mr Ozzimo for telling fellow employees at Underwood and Australia Post interstate drivers that Mr Donnellan “was in the shit”, “was a dog”, “could not be trusted” and that he “hoped Mr Donnellan would get cancer”. Taken together a person engaging in such commentary as to a fellow employee across such a broad stage would be most likely to face a charge that they had misconducted themselves in the way alleged by Australia Post. This is because such behaviour would be thought of as reducing the slandered employee’s standing in the workplace and to constitute harassment and victimisation, and if part of repeated conduct, bullying.

The Promulgation of Policy

[69] Australia Post is an employer with carefully crafted policies which deal with and regulate the ways in which its employees must conduct themselves and interrelate in any work or work sponsored environment. On-going training, as the evidence discloses was delivered with some regularity at Underwood, and Australia Post’s public materials and policy distributed at Underwood form part of the employer’s attempt, to have these policies assume a real meaning in the workplace - to actually apply on the job.

[70] Mr Ozzimo has received material as to this policy and training, including the ticking of boxes in answer to questions, and other policy documents on a range of occasions over some years and these efforts extended to a form of personal tutorial on at least one occasion. There was comprehensively detailed evidence of this, not here repeated (See TPN 725 to 872). While Mr Ozzimo and Mr Prestipino both appeared loathe to acknowledge having read the ethics and anti-bullying and harassment materials they had been given over the years, they did ultimately admit to a knowledge of the policies and an appreciation of the need for all employees to treat others respectfully and ‘how they would like to be treated’. A theme of Mr Ozzimo and Mr Prestipino’s evidence as to Australia Post’s effort to circulate and have employees understand these policies, was that they were told nothing that they didn’t already know.

[71] I have concluded that Australia Post had undoubtedly taken the steps necessary to inform its staff of the obligations resting on all employees to act cooperatively and courteously, one with the other. Part of this understanding was to convey to employees what was the expectation of their employer as to how employees had to inter-relate and, relevant to this case, that repeated harassment and bullying was at the core of behaviour that was proscribed. It is relevant to note that all employees at Underwood are very likely to have known of the extensive nature of the CIP, with 33 employees interviewed, some more than once, that the Investigators were in their midst - and that the matters at the heart of the inquiry were harassment, victimisation and bullying.

[72] Mr Wilson’s summary of the charges outlined above, put to Mr Ozzimo at the concluding phase of the investigation, and Mr Wilson’s review of the material, reflect that as to allegation 2 a., Australia Post relied only on the “was a dog”, “stirring up trouble” and “couldn’t be trusted” contentions.

[73] There is no direct witness evidence of Mr Ozzimo having said these things to fellow employees in the Underwood Depot or to other line-haul drivers from other depots. The employee named in the report as having told the Investigators Mr Ozzimo had said that Mr Donnellan was “stirring up trouble” and was “a dog” did not give evidence. No reason was given by Australia Post as to why this was so. The Investigators opine of the absent employee, that in responding to all questions from them that his responses “appeared to be open and honest and demonstrated impartiality” (Exhibit AP6, Abridged Annexure C to Ms Worldon’s Statement).

[74] There is no specificity in the body of Australia Post’s material as to the ‘cancer’ comment. The Report contains the comment, “No witness was able to confirm hearing Mr Ozzimo make the statement” (Exhibit AP5, page 69). The Investigators spoke with relevant interstate drivers as to the comments alleged more generally. At page 68 of their Report Ms Worldon and Mr Wendt say (in reference to “bagging out”, “stirring up trouble” and being a “dog”), “None of the inter-state drivers interviewed could confirm directly hearing the alleged comments being made about Mr Donnellan”.

[75] It is submitted by Australia Post that “in all the circumstances, it was reasonable for the Investigators to accept the evidence of witnesses to the effect that they overheard the Applicant making such statements in preference to the evidence of the Applicant” (Report attached to Ms Worldon’s Statement, Exhibit AP5, page 68). The Report is scant with detail in this regard. Several instances are given where Australia Post employees told the Investigators “they had not directly heard the alleged comments made by Mr Ozzimo, however were not surprised by the comments as it sounded like something Mr Ozzimo would say...” (Exhibit AP5, page 69) (emphasis mine).

[76] Ultimately the Investigators conclude they are not able to be satisfied that Mr Ozzimo said Mr Donnellan was “in the shit” or that Mr Ozzimo had said he hoped Mr Donnellan “would get cancer”.

[77] Against this the Investigators spoke with employees who told them of comments made by Mr Ozzimo as to Mr Donnellan being the “overtime king”; from one employee that Mr Donnellan had made up the Allan Mercer incident and, from one employee that he had heard from other drivers that Mr Ozzimo had made derogatory comments ‘against’ Mr Donnellan.

[78] As set out above, I must conclude, as a matter of jurisdictional fact, that events or acts complained of by an employer, and said to form the basis for a subsequent termination of employment of an employee, actually happened.

[79] With the “in the shit” and “cancer” elements conceded by Australia Post, allegation 2 a. is diluted. The sole employee reporting the ‘dog’ comment is absent and on Mr Ozzimo’s evidence, this is untrue, that is, he did not make this comment. I decline to accept the broadening of charge 2 a. evident in the Investigators’ ‘Summary’ when the Investigators’ report to Mr Wilson as to “the intent of the allegation was that Mr Ozzimo made comments to other staff implying Mr Donnellan was unable to be trusted, was a trouble-maker and was also a liar ...” to damage Mr Donnellan with the Australia Post staff (Report page 69) (Emphasis mine).

[80] While an element of Allegation 2 a. is conceded, that Mr Ozzimo did not trust Mr Donnellan, I cannot be satisfied the comments which comprise Allegation 2 a.’s principal constituent elements were made to employees such as to have the allegation to which Mr Ozzimo was required to respond sustained. As a matter of important context Mr Fenton stressed that the review conducted by the Investigators, of combing through recollections as to remarks, was in response to the particular allegations brought forward by Mr Donnellan. In many, but not all, instances the Investigators spoke with fellow employees nominated by Mr Donnellan as being in a position to report the events complained of and yet still there was very little substantiation.

[81] It is the case, as Mr Fenton submitted, that many of the Australia Post staff who participated in interviews with the Investigators did not give evidence. Apparently a number sought that their participation in the enquiry be kept confidential. Although one appreciates the reality that many employees are likely to be reluctant to become publicly embroiled in such persistent personal controversies, the remarks passed to officials investigating claims (particularly when such information is given on the basis of an individual employee’s confidentiality being maintained) cannot substitute for evidence openly given and the employee subject to cross-examination, to counter that given by Mr Ozzimo. Fairness to Mr Ozzimo requires no less. As a side issue Australia Post has spoken several times throughout the case as to a fear of retaliation held by or expressed by employees. I have not formed a view about this - there being no evidence linking Mr Ozzimo with such matters.

[82] Where Australia Post has relied upon the opinions and recollections of its employees as reported in camera to Ms Worldon and Mr Wendt, I have been urged by Mr Fenton to not place weight on such commentary and opinion - particularly when it cannot be met by Mr Ozzimo in open-hearing. Without traducing the Investigators and the truthfulness of their reporting of what they were told - I have generally sought not to rely on the reported views of Australia Post employees who have not given evidence. To avoid any uncertainty I add that I have felt no reluctance in accepting Ms Worldon’s evidence as to what the Investigators were told by employees who have subsequently given evidence. In other than minor matters I have accepted Ms Worldon’s evidence - she was an impressive witness who I felt established, contrary to submissions put for the Applicant, that the Investigators did not set out to prove the truth of the allegations and in doing so disregard evidence tending to the contrary.

[83] Allegation 2 a. as originally formulated is not made out. I have however formed the view from all the evidence that Mr Ozzimo’s opinion was that he did not like Mr Donnellan, did not trust him, blamed him for having at least partly caused and then exaggerated the Mr Allan Mercer/Mr Stephen Hayes incident and, as will be particularised below, had said to Mr Gary Smith that he would never speak with Mr Donnellan again (Exhibit AP13, Statement of Mr Gary Smith, paragraph 29).

Allegation 3

[84] As originally put to Mr Ozzimo, Allegation 3 represented a number of workplace occurrences wherein he was said to have engaged in bullying behaviour by failing to follow correct procedures in an attempt to disrupt and frustrate Mr Donnellan. These activities were directed to Mr Donnellan not being assisted in completing his duties as per the standard Australia Post practices and again, all as a consequence of Mr Donnellan’s ‘perceived’ involvement in Mr Allan Mercer’s sanction for aggressive behaviour. The Allegations it will be recalled, involved Mr Ozzimo not positioning Mr Donnellan’s truck prior to Mr Donnellan’s sign on.

[85] Both of the truck-positioning occurrences originally the subject of Allegation 3 occurred at the Rockhampton Central Queensland Mail Centre on 17 and 18 September 2009. The Investigators found the first event to be not substantiated. The second occurrence on the 18 September 2009 involved Australia Post alleging that at 23:30 Mr Ozzimo failed to move Mr Donnellan’s truck to permit its timely loading.

The 18 September 2009 Allegation

[86] The allegation of 18 September was that Mr Ozzimo, prior to Mr Donnellan signing on for duty, had failed to “move up” the truck designated for later use by Mr Donnellan to an important preparatory loading point. Failure to do so prior to Mr Donnellan’s sign-on will be understood to have the certain affect of retarding the loading of Mr Donnellan’s truck, thereby delaying its departure - which in turn would mean Mr Donnellan’s mail articles would arrive at their destination late.

[87] It will be understood that outside Australia Post’s major depots generally only line-haul B-double drivers are licensed to drive Australia Post’s B-double trucks. It was therefore an important part of the line-haul B-double driver’s duty, if asked for assistance by the loading staff at a regional depot, to ‘bring up’ a B-double truck from a holding yard to the specialised loading dock. This is because only then could the loading of mail commence with the aid of fork-lift trucks according to the Australia Post loading regime.

[88] In appreciating the need to move the vehicles to have the mail delivery schedule met, no blame should be thought of as attaching to the absent driver, in this case Mr Donnellan. Mr Donnellan was not required to be in attendance at the time his vehicle was sought to be ‘brought-up’ as his duty period had not commenced.

Mr Donnellan’s Delay and Its Cause

[89] In brief summary, Mr Donnellan’s account was that upon attending for duty it became apparent that his truck had not been moved up to the loading dock as per the standard practice. On Mr Donnellan’s account he had never known the departing vehicle he was shortly to drive not having been brought up, usually by the driver of the vehicle departing prior to Mr Donnellan’s truck. Mr Donnellan told Australia Post that he had been told by the Centre’s loading dock Supervisor, Mr Balck, that he (Mr Balck) had requested Mr Ozzimo to move the truck up, but that Mr Ozzimo had declined, stating that there were bugs on his windscreen and he was running late (Exhibit AP5, attached Report page 78 and Exhibit AP3, Mr Donnellan’s Statement, paragraph 79).

Mr Ozzimo’s Response

[90] Mr Ozzimo was asked by the Investigators as to the 18 September 2009 events and he advised Australia Post that when requested to move a truck he generally does, unless he is running late or if moving the truck would make him late. Mr Ozzimo said he did not remember being asked to move the otherwise delayed ‘Donnellan’ truck on the occasion in question.

The Broader Evidence

[91] Some considerable detail was gone into to establish when the drivers ‘keyed on’ by means of the satellite recording of the minutiae of truck movements and the corresponding driver’s duty periods. This data was said to establish that Mr Ozzimo could have performed the movement of Mr Donnellan’s vehicle had he agreed to do so, and that doing so would not have made Mr Ozzimo late (Report page 80).

[92] In my view it is unnecessary to canvass the empirical data establishing Mr Ozzimo’s attendance and consequent capacity to have moved Mr Donnellan’s truck. Australia Post found it no more than ‘likely’ that Mr Ozzimo was asked to move the Donnellan truck to the dock for loading. The difficultly is that apparently, Mr Balck does “not recall the incident” (Report page 78). Mr Balck did not give evidence.

[93] In circumstances where even the employer position is only that it is ‘likely’ such a request was made of Mr Ozzimo, where Mr Ozzimo gives his evidence denying being asked, and the Supervisor has no recollection of what Australia Post term an “incident” on 18 September 2009, in my view there is an insufficiency of evidence to ground the important charge of Mr Ozzimo failing to comply with a request to bring up the truck. Absent some other evidence, it is fundamental to determining Mr Ozzimo guilty of the allegation of refusing such a request, for the Supervisor involved to acknowledge that the normative request was made and was declined. The consequences are too important to be based on surmise or supposition. It follows that this allegation cannot be substantiated and cannot sustain or form part of a valid reason Australia Post might otherwise have for termination of Mr Ozzimo’s employment.

The Handover Allegations

[94] I now turn to the handover allegations, an understanding of which requires appreciation of the carefully synchronised movements across long distances whereby in this case Australia Post’s Underwood based drivers ensure mail deliveries between Queensland and Victoria occur on-time by the exchange of mail laden trailers at Dubbo NSW. Dubbo, serving as a Melbourne-Brisbane half-way point, sees the exchange of trailers between Underwood and Melbourne based B-double prime-movers. The exchange takes place not at an Australia Post facility, but at a yard adjacent to the road.

[95] Two allegations are made as to Mr Ozzimo failing to properly hand-over a vehicle to Mr Donnellan at the Dubbo exchange point, the first in June 2009 and the second in January 2010. It will be helpful to record some preliminary aspects of the work before dealing with the handover allegations.

The Line-Haul Function

[96] Relevant to this decision are aspects of the long distance, long-haul work, which typically required a rendezvous between Mr Ozzimo and a fellow Australia Post driver from another line-haul depot.

[97] With variations, Mr Ozzimo’s usual tours of duty were to carry Australia Post articles to and from Brisbane to Dubbo, Coffs Harbour, Rockhampton and Mackay. While some of his work was capable of being performed within a day, that is including the return leg to Brisbane, many of the trips required Mr Ozzimo to ‘overnight’, (whatever the time of day), at a destination before returning to Brisbane, after suitable rest, with a further load of mail.

[98] With several operational exceptions not necessarily detailed here, the policy of Australia Post is that only the loaded trailers, not the prime-movers, are exchanged between Underwood and Melbourne based drivers at such rendezvous points. This means that Brisbane trucks or prime-movers return to Brisbane and similarly, the Melbourne based prime-movers would return to Victoria with the south-bound mail. Before considering the events in question it is important to consider what is involved when two B-doubles meet.

The Handover Procedures

[99] By long standing Australia Post practice a series of functions are performed, necessarily unsupervised, by the driver arriving at an intermediate handover port such as Dubbo which, it will be seen, have borne directly on this case. While some minor courtesies are generally taken, it seems, by the arriving driver as a gesture to the departing driver, such as fuelling the truck and washing the windscreen, these were not performed by Mr Ozzimo for Mr Donnellan on 30 July 2009 or by Mr Ozzimo and Mr Russell Smith for Mr Donnellan on 18 January 2010. Other than noting their non-occurrence no further emphasis was placed by Australia Post on these conventions not having been followed by Mr Ozzimo.

[100] At the time of these events the line-haul vehicle handover procedure required the arriving driver to perform three important functions, each essentially for the safety and benefit of the departing driver. It was common ground that the arriving driver is paid to perform or provide the following services:

● A safety check of the vehicle upon arrival at the handover point, which safety check permits the arriving driver to then appraise the departing driver of the operational status of the vehicle. Any existing fault may have already been recorded on the ‘PT35’ form recorded in the special book (colloquially termed the ‘black book’), kept always with the truck, in which faults are set down for later attention upon the vehicle’s return to the depot or at some intermediate place should that be necessary. Additionally, the arriving driver may, at journey’s end, make an entry in the book. It is this information, including also the granting of a clean bill of truck health - an absence of faults, which is to be advised to the departing driver, the truck’s inheritor, by the arriving driver.

● The provision of advice to the departing driver as to the road and any other conditions likely to be experienced on the route just travelled and thereby alerting the departing driver of any matter of concern, as to any operational issue such as road diversions, detours, roadworks or any other hazard likely to be encountered. It will be appreciated that road conditions over long Australian distances are often non-static.

● The performance of a function called the ‘quick hitch’, whereby in this example the Brisbane prime-mover is disengaged from the two ex-Brisbane trailers and is driven to the nearby ex-Melbourne trailers which are then coupled to the Brisbane prime-mover. It will be appreciated how vital is the need to ensure that not only are the trailers properly attached, but that the accompanying brakes, various hoses and lights are functioning in an optimum fashion.

[101] Only when these tasks have been accomplished does the departing driver take possession of the vehicle ‘presented’ to them by the arriving driver.

The Importance of the Handover

[102] The witnesses agreed as to the crucial importance of the handover procedures being completed carefully and thoroughly to ensure operational safety is not compromised. While it is true that the departing driver is also expected to check their truck and trailers and indeed is obliged to do so, it will be appreciated that the arriving driver, having observed the performance and operation of their vehicle over an extensive period of time and at different speeds, is uniquely placed to fully advise the departing driver of the operational status of the vehicle and any problems encountered.

Trust and Safety

[103] Frequent themes of both sides in the case were safety and trust - with Mr Ozzimo’s refrain being that he could not ‘trust’ Mr Donnellan. The evidence of the Australia Post witnesses was that for long distance drivers, ‘to trust’, was crucial because:

As Mr Cray put it, “... they need to do a proper handover, be notified of how the vehicle is running, how the road is running, the conditions, you know, to where they’re heading, and they’re going 10 hours up the road. A lot changes. You know, one minute the road’s okay, the next minute you’ve got construction and all that. You know, there could be a slight problem with the truck that needs to be rectified when it returns to the depot or something, so it’s crucial that they have a proper handover, they speak to each other. It’s not just, “Here’s your vehicle. I’m out of here.” They need to go through the process when they hand over a vehicle.” (TPN 5679); and

“... we’re talking about a 50-plus tonne vehicle, you know. Both drivers, from both ends, want to know that, “Okay, I’m receiving a roadworthy vehicle,” or, you know, “I’m going up somewhere. I know that there’s no floods.” I mean, we’re dealing with road closures, diversions all the time, so it’s critical. We need to make sure the mail gets back there on time so, I mean, it’s totally critical that they can communicate with each other.” (TPN 5680)

[104] Mr Michael Hill, the Coordinator of the 36 Underwood line-haul drivers described the changeover function in these words:

“When handing over a vehicle, the first driver is required to inform the second driver of the condition of the vehicle, whether he or she has noticed any problems with the vehicle and if so what those problems are and any other information that will assist the second driver to perform his or her duties safely.” (Exhibit AP10, Statement of Mr Hill, paragraph 8)

[105] As to the need for trust in line-haul drivers’ relationships Mr Hill said:

“... well, there’s got to be trust in it because as I said yesterday, if there’s a problem with a vehicle at a hand-over point and it doesn’t get passed on to the driver that’s taking over, it could cause a bad accident or injury to someone, so they need to know if there’s any little problems with a truck.” (TPN 5366)

Paid Functions

[106] Arriving drivers are paid 15 minutes pay in recognition of the time and effort involved in performing the post-arrival safety check and conducting the vehicle handover. Arriving drivers are paid a further 15 minutes pay in recognition of their performing the quick hitch described above. Annexure TC-A to Exhibit AP14, Mr Cray’s Statement, reflects 30 minutes extra pay on a driver’s ‘Duty Board’ for the handover and the quick hitch - although it was acknowledged the tasks could be performed in slightly less time.

[107] It will be appreciated that having driven a large truck towing two trailers the 860 kilometres from Brisbane an Underwood line-haul driver arriving in Dubbo, after effecting the exchange of trailers, and conducting the safety check and handover, requires considerable rest before taking up the return leg of their duty. As has been observed ‘safety’ was said to be a key interest of Australia Post and its employees, and, as will be apparent, its name and cause were frequently invoked during the case.

[108] Of course mail transport is never-ceasing and there is also present, at such a roadside trailer exchange in Dubbo, a Brisbane based driver who, having driven an earlier shipment, and now refreshed from rest in Dubbo, almost immediately sets off for Underwood. Similarly, the Melbourne mail will be taken south by a rested Melbourne driver keen to meet the tight delivery timelines which Australia Post is obliged by legislation to satisfy.

The Dubbo Changeover Generally

[109] The first Dubbo handover from which an allegation arises occurred in July 2009 when it is said Mr Ozzimo failed entirely to follow the detailed, customary handover regimen including the paid safety related functions just described. The second allegation arises following a handover which occurred in January 2010 when a ‘faulted’ vehicle, that is, a vehicle known by the arriving crew to have a fault, was said to have been given to Mr Donnellan without a safety advice or briefing and in circumstances where a series of other deficiencies in the conduct of Mr Ozzimo are said by Australia Post to have impinged on safety as, again, the vehicle handover custom and practice was not followed by Mr Ozzimo.

[110] There are two aspects of these Dubbo handovers which drew a further submission from the respondent. Australia Post has regarded the 18 January 2010 faulted vehicle handover as so deficient, as having so departed from the line-haul norms of vehicle exchange, that the previous handover practices, said to have evolved and to have been understood by the custom and practice of many years of Australia Post mail operations, have perforce been formalised into a detailed operational procedure. This procedure now formally binds arriving Underwood drivers at handover, explicitly declaring the matters that must be raised by the arriving driver to the departing colleague. Divergence from it is forbidden.

[111] The second further submission was that Australia Post had treated, as should Fair Work Australia, the 18 January 2010 handover from Mr Ozzimo to Mr Donnellan as especially serious, coming as it did within the period of investigation into the harassment and bullying by Mr Ozzimo of Mr Donnellan. The Australia Post submission was that Mr Ozzimo’s behaviour over the course of the 18 January event and coming within the period of a major investigation of the Applicant’s conduct toward Mr Donnellan reflects Mr Ozzimo’s deep-seated incapacity or unwillingness to work with Mr Donnellan.

The 30 July 2009 Changeover

[112] Mr Donnellan’s witness statement provides a convenient summary of the events which led to the Australia Post allegation against Mr Ozzimo relevant to the first contentious Dubbo transfer. Mr Donnellan put it in the following way:

“Allegation D concerns an incident of 30 July 2009, where at approximately 1:30 am at the Dubbo, NSW handover point on the Mitchell Highway, on vehicle handover, Mr Ozzimo, the arriving driver, left the vehicle door open and proceeded to walk off down the road, failing to: i) check the vehicle’s tyres or conduct a post drive check; ii) advise me, the departing driver, of the vehicle’s condition and safety; and ii) unhitch the ex-Brisbane trailers and hitch the ex-Melbourne trailers onto the Brisbane prime mover, as per the custom and practice for linehaul vehicle handover.

On 30 July 2009, Mr Ozzimo was required to handover a vehicle to me in Dubbo. I was waiting at the handover point on the perimeter of Eston Park the Mitchell Highway when Mr Ozzimo pulled up, so that I was standing on the passenger side of the vehicle.

Mr Ozzimo turned off the vehicle, jumped out, and immediately walked away from the vehicle and me, heading towards the Atlas Motel and leaving driver side door of the vehicle open (sic). Mr Ozzimo said nothing to me nor to the Melbourne drivers who were also at the handover point at that time.

Mr Ozzimo obviously did not, having gotten out of the vehicle and immediately headed off to the motel:

- check the vehicle’s tyres or conduct the post drive check as required;

- unhitch the ex-Brisbane trailers or hitch the ex-Melbourne trailers (called the “quick hitch”) as required; or

- give me any information in respect of the condition of the vehicle or in respect of the journey he had just made on the roads I was about to travel on.

As such, I unhitched the ex-Brisbane trailers and hitched the ex-Melbourne trailers with the help of one of the departing Melbourne drivers, Mr David Jones and performed the necessary safety checks

I refer to paragraph 32 of the Witness Statement of Mr Ozzimo where he says that on 30 July 2010, he did perform the safety checks as required and did unhook the ex-Brisbane trailer and hitch the ex-Melbourne trailers as required and say that he is not being truthful because on 30 July 2010 he did not perform the safety checks and did not perform the quick hitch. (Exhibit AP3, Mr Donnellan’s Statement, paragraphs 67-72) (Emphasis original)

[113] The Investigators’ Report reflects this information, adding materially that:

● Mr Donnellan told the Investigators that as Mr Ozzimo walked to the Atlas Motel he did not say anything to Mr Ozzimo as he “just let it go” (Report page 70).
● Mr Donnellan advised that he reported the incident to Mr Morrison, the Underwood Manager who told Mr Donnellan that “... he had every right to refuse to drive the truck back, as the vehicle could have been unsafe or had something wrong with it” (Report page 70).

Mr Ozzimo’s Response to the Investigation

[114] The investigation into the 30 July Dubbo handover reflects Mr Ozzimo telling Ms Worldon and Mr Wendt that:

● he does his major vehicle check, not at Dubbo, but at a nearby town, Gilgandra (Report page 70);

● at Dubbo he does only a check of lights and tyres (Report page 70);

● he does a post arrival check for every driver and, in the words of the Report “Mr Ozzimo stated he does the exact same thing for every driver every time” (Report page 70); and

● he did a handover with Mr Donnellan, although later Mr Ozzimo “retracted stating that he did not speak to Mr Donnellan at all and he did not discuss the vehicle’s condition with Mr Donnellan. Mr Ozzimo stated he would only say something to Mr Donnellan if there was something wrong... On this particular handover with Mr Donnellan, Mr Ozzimo said “there was nothing to say”. Mr Ozzimo stated he checked the vehicle, and that after he did what he had to do he walked down the street and went to bed” (Report page 71).

[115] The Investigators also noted:

● Mr Donnellan had spoken to Mr Morrison as to Mr Ozzimo’s actions; and

● that Mr Morrison had told the Investigators that he, Mr Morrison, had agreed with Mr Donnellan that it (the changeover) was part of Mr Ozzimo’s job, however that he had not taken any further action with Mr Ozzimo.

The ‘My Fleet’ Satellite Data

[116] The detailed record of the satellite data over the period in question was set out in the Report (Annexure TW-A to Ms Worldon’s Statement, Exhibit AP5).

[117] The My Fleet data shows (Report page 72):

● Mr Ozzimo drove through Gilgandra at approximately 00:51 on 30 July;

● Mr Ozzimo did not stop at Gilgandra,

● Mr Ozzimo arrived in Dubbo at approximately 01:11 on 30 July,

● While Mr Ozzimo finally ‘keyed-off’ (or “officially” keyed-off as the Report terms it) at 01:15 the vehicle was idle for four minutes during which period he keyed on and off as follows - off at 01:11:15 on at 1:11:16, off at 01:11:26, on at 01:13:34 off at 01:13:25 on at 01:14:30 until final key-off at 01:15:15.

[118] The Investigators had queried the number of key-ons and key-offs with the Line-haul Manager who advised such keying on and off is not unusual, as drivers completed their paperwork, to have the lights on and to record vehicle mileage.

[119] As the vehicle did not move during the four minute period and Mr Ozzimo was in the cabin keying off and on six times, as set out above, the Investigators concluded that he remained close to or in the cabin and did not perform the post arrival check of the vehicle. Supporting this conclusion is the fact that Mr Donnellan keyed on at 01:21 and departed immediately.

[120] Mr Donnellan’s account to the Investigators was that a Melbourne driver at the changeover point assisted him in completing the unhitch and hitch functions which permitted him to get underway (Report page 73). Mr Donnellan also told the Investigators that, as noted earlier, contrary to Australia Post custom, he, as departing driver, had not received a telephone call from Mr Ozzimo advising of his imminent arrival and similarly the usual courtesies from the arriving driver of having fuelled the truck and cleaned the windscreen did not occur.

Mr Ozzimo’s Evidence

[121] Mr Ozzimo’s evidence was that sometimes he performed a “major check” at Gilgandra (TPN 1469) and then only a ‘visual’ upon arrival at Dubbo, “but I always check the tyres, the lights, I do a visual of the wheel nuts, straps, curtains” on the ex-Brisbane trailers before the disconnection and hook-up to the ex-Melbourne trailers (TPN 1469).

[122] Mr Ozzimo agreed that he did not speak to Mr Donnellan (TPN 1532) and, rather, it was Mr Ozzimo’s account that Mr Donnellan had approached Mr Ozzimo’s truck upon arrival offering to assist Mr Ozzimo. Mr Ozzimo said of the occasion, “... I have got a good memory, but I don’t know exactly what he said and I don’t know exactly what I grunted, but I do remember the night in question. I remember doing what I had to do and I do remember him coming to me and saying something along the lines of, “I’ll help you”, or something like that and I grunted something back and I just continued on to do what I had to do.” (TPN 1451). Mr Ozzimo agreed that an unaided driver could perform the unhitch in about five or six minutes and the subsequent hitch in five or six minutes. Mr Ozzimo acknowledged that it was customary for the arriving drivers (in this case Mr Ozzimo) to telephone the departing driver, in this case Mr Donnellan, when the truck was about 15 minutes from Dubbo (TPN 1672).

[123] As to the performance of the quick hitch, Mr Ozzimo said that the vehicle was not “high-revving” (TPN 1600) so the movement of the truck by the 50 or 100 metres necessary to couple the prime-mover with the ex-Melbourne trailers may not have registered, but that he did perform the hitch in question (TPN 1620) and that the data which did not show the movement of the truck was wrong.

[226] On any reasonable construction Mr Ozzimo must be seen as having chosen to take a dominant, quite decisive role in the handling and assessment of the fault and in reporting to Underwood depot - such as to entirely overshadow Mr Russell Smith’s role - notwithstanding as is well appreciated that nominally, Mr Russell Smith would in normal circumstances be seen as shouldering principal if not sole responsibility, as driver. This conclusion as to Mr Ozzimo is irresistible for the reasons given by Australia Post and set out above, but also, in my view, because:

● Mr Ozzimo, on his own account, conducted a close examination of the under-chassis and drive-train by laying on his back under the truck; and

● in doing so, Mr Ozzimo was calling upon his acknowledged mechanical skills gained years before during formal mechanical training and because he,

● chose to take the lead in speaking with Mr Cray - rather than have Mr Russell Smith as driver who had experienced the fault, report to Mr Cray, and, further, because

● on Mr Russell Smith’s account, Mr Ozzimo had not asked him (Mr Russell Smith) whether he wanted a replacement vehicle (TPN 3188-89).

[227] In the light of the integration of duties on 18 January 2010 between Mr Russell Smith and Mr Ozzimo en route to Dubbo it is artificial in the extreme to demark the roles of the two in the way proposed by the Applicant’s submission. Such an approach fails to recognise that where a passenger is on board that roles can be shared, as indeed Mr Russell Smith says occurred on arrival at Dubbo on 18 January. In that regard Mr Russell Smith confirmed that he had told the Investigators that upon arrival at Dubbo, Mr Ozzimo, not he as driver, had performed the post-arrival check because “where there are two of you, you split the tasks?” ... That’s correct.” (TPN 3246). Had Mr Ozzimo been without mechanical knowledge and had he been a passively indifferent supernumerary throughout the trip from Underwood, the submission would be sustainable that Mr Russell Smith bore sole responsibility. However in the circumstances of this case the suggestion that Mr Ozzimo had no shared responsibility to brief Mr Donnellan as to the operational/safety position Mr Donnellan was inheriting in taking the vehicle is utterly without foundation.

The Faults

[228] While there is not a great deal of evidence as to the subsequent treatment of the fault/s it is known via the Gilgandra Receipt and that from Beaurepaires (Annexure BK to Exhibit AP5) that, despite the repeatedly expressed opinion of Mr Ozzimo to the contrary, (that the vital steer tyres at the front of the prime-mover were not involved in the fault) the tasks performed by the tyre specialist at Gilgandra and then upon return to Underwood by Beaurepaire’s saw the necessary repairs made (TPN 3822). Mr Donnellan’s evidence was that the first work solved about 80% of the problem and enabled him to return to Underwood where further balancing was done and two new tyres fitted. The repairs included steer tyres (See Annexure BQ Beaurepaires Invoice and, Annexures BK and BZ Frank Cross Tyres’ Gilgandra Invoice and Work Card to Exhibit AP5, Ms Worldon’s Statement).

Mr Ozzimo and Mr Russell Smith’s Motive

[229] In my view the evidence reflects that Mr Ozzimo and Mr Russell Smith initially regarded the fault as being of at least medium level concern and not of a minor nature. Driving at high speed and given certain road conditions they seem to have concluded, on balance to persist with their delivery to Dubbo. Given my finding that Mr Ozzimo assumed a dominant influence in relation to the fault and the evidence of his meticulous standards in not driving vehicles with even minor faults, it is not easy to understand why Mr Cray’s offer of another truck was refused or why expert attention was not sought by Mr Ozzimo after the second stop, as suggested by Mr Russell Smith’s evidence was floated by Mr Ozzimo to Mr Cray. Australia Post says the motive was to deliver the problem to Mr Donnellan. Having regard for my finding as to Mr Ozzimo’s strong dislike for Mr Donnellan, and Mr Ozzimo’s ultra-fastidiousness, the Australia Post submission has some real appeal.

[230] There is however an insufficiency of direct evidence for me to come to a view as to motive and I do not do so. It is curious however why Mr Ozzimo would not advise the truck’s driver, Mr Russell Smith, of the availability of both drivers and replacement trucks when forty minutes from Underwood. Certainly Mr Ozzimo’s stoic preparedness to ‘press on’ to Dubbo, given his well known disinclination to accept a minor fault or drive a vehicle with non-matching front tyre treads, suggests a singularly uncharacteristic determination on this occasion. Ultimately it is unnecessary to come to a conclusion that the truck was so unserviceable that it shouldn’t or couldn’t safely be driven or that, in some manic fashion, a dangerous vehicle was driven to Dubbo to Mr Donnellan. It is sufficient for present purposes to find the truck was clearly faulty and close attention was required to be given to the safety handover.

Mr Cray’s Authorisation

[231] I have also accepted that there is no foundation in Mr Ozzimo’s account whereby Mr Cray had, in effect, authorised Mr Ozzimo and Mr Russell Smith to continue because the truck was to be ‘seen to’ upon return to Underwood. While as has been observed it is obviously true that any faulted vehicle would be repaired upon return to Underwood, Mr Ozzimo’s account of Mr Cray’s comment is to a difference purpose. Its purpose was, in my view, to absolve Mr Ozzimo of any responsibility for driving the faulted vehicle, or for not having it ‘seen to’ later on the trip to Dubbo, because ‘Mr Cray had said it will be taken care of upon return to Underwood.’ And finally, by relying on what he says Mr Cray told him, Mr Ozzimo is able to brush off Mr Donnellan’s complaints over the vehicle by saying “...my boss told me to bring it down” or, in the words of Mr Ozzimo’s statement, (Exhibit 01, paragraph 69) “... it had a fault that was to be repaired when the vehicle was returned to Brisbane as per the instructions of Mr Cray.” (emphasis mine). I have not accepted this evidence.

[232] To abandon the safety handover in all these circumstances was, in my view, a serious breach of Australia Post policy and practice and, whatever the motivation, a wilful abandonment by Mr Ozzimo (and Mr Russell Smith) of their fellow driver. I also find that the quick hitch was not performed on 18 January 2010 at Dubbo although no odium attaches to Mr Ozzimo on this account. I now turn to consider the submission put as to Mr Donnellan’s conduct after the handover.

Mr Donnellan’s Conduct Post Handover

[233] After accepting the truck in Dubbo Mr Donnellan’s account is that the fault was serious and he sought assistance in Dubbo as earlier described. When the Beaurepaire workshop was unable to accept the B-double for some hours owing to the potential breadth of Mr Ozzimo’s diagnosis, Mr Donnellan’s evidence was that it was suggested he drive to a tyre specialist at Gilgandra. Mr Ozzimo’s case emphasises that Mr Donnellan’s witness statement (Exhibit AP3) says that he headed to Gilgandra “slowly” at about 70 kilometres an hour, amended in evidence in chief to 75 or 80 kilometres an hour, owing to the vibration and the steering being affected by the fault. The My Fleet data indicates that Mr Donnellan drove at 99 kph for most of the trip to Dubbo.

[234] When cross-examined about this Mr Donnellan advised that on the way to Gilgandra he was on the phone to the tyre mechanic who had advised driving at different speeds including up to the maximum. Mr Fenton pressed strongly that this explanation not be accepted and that it reflected very poorly on Mr Donnellan’s credit generally, largely because it had not featured in his previous statements. It was late, detailed evidence drawn out in examination-in-chief. Mr Donnellan had told the Investigators that he couldn’t go over 80 kilometres per hour owing to the steering (Report page 81). Clearly Mr Donnellan understated the speed at which he drove to Gilgandra - whether at the request of the mechanic or not.

[235] I have accepted that the My Fleet data accurately records the truck speeds and that, even allowing for the mechanic’s urging for Mr Donnellan to take the truck up to the maximum speed, Mr Donnellan significantly understated the speed at which he drove. In this regard I have noted Mr Cray’s evidence that quite often when there have been problems in the past, tyre representatives have asked the drivers to “go up and down speeds” (TPN 5796). But clearly this does not fully explain Mr Donnellan’s statement or why the mechanic’s advice did not form an explanatory part of Mr Donnellan’s statement. I have also noted that it seems that the witness statement was prepared for Mr Donnellan with little scrutiny from him and contains language which he says he does not use.

[236] Accepting that Mr Donnellan has understated his speed, I am mindful of Mr Russell Smith’s evidence that the fault was apparent only when “Going uphill, going slow and on a smooth road” (TPN 3182 and 2813) and that “because we were doing 100 kilometres an hour, we didn’t notice or feel anything” (TPN 3188-89).

[237] It is the case that Mr Donnellan both understated the speed at which he drove and that given the state of the truck that he graphically depicts, that he presumably drove too fast, rather like Mr Russell Smith and Mr Ozzimo may have done. I do not however consider that such an act, of going too fast or of under-estimating his speed, necessarily reflects on the earlier events of the day. I have found on the evidence of the work performed on the truck both at Gilgandra and upon return to Underwood, that the vehicle did have faults both to the steer tyres and on other tyres to the rear which required to be addressed.

[238] Of course this does not take up the thrust of Mr Fenton’s objection going to credit. I have carefully considered the totality of the evidence and that of Mr Donnellan. While my reservations as to Mr Donnellan’s understatement of his speed and as to one aspect of the ‘hierarchy’ document have already been discussed, these aspects within a very detailed narrative have not compromised my view as to the great preponderance of his evidence being reliable. The existence of these two aspects does not mean that in other respects Fair Work Australia cannot accept his evidence when it is thought to be reliable. (See John Hanna v Manshiel Pacific Pty Ltd t/as Boncel (U2005/2929 - Giudice J, O’Callaghan SDP, Gay C, PR967467, 25 January 2006, paragraph 27). I have generally accepted his evidence as sound and have had no reluctance in preferring it to that of Mr Ozzimo and Mr Russell Smith where they clashed. To avoid any doubt, the part of Mr Donnellan’s evidence that I have accepted over Mr Ozzimo’s is his statement that at the July 2009 Dubbo handover Mr Ozzimo performed no checks, handover or quick hitch and, on 18 January 2010, Mr Ozzimo did not advise him of the status of the truck or of the result of the safety check allegedly performed upon arrival at Dubbo by Mr Ozzimo.

[239] I have also noted that the investigators found Mr Donnellan to be honest and open and apologetic for his complaints, yet appreciative for them being investigated (Exhibit AP5, Report page 8). I formed a similar view - even if leavened by some over-statement from Mr Donnellan.

[240] I am urged to discount Mr Donnellan’s evidence because of his medical certificate and because it is submitted he gave his evidence in a “relaxed and casual manner” (Exhibit AP18 Written submissions, paragraph 47).

[241] There was no reason of which I was aware which would impugn the genuineness of the medical certificates - which I have taken at face value. As to Mr Donnellan’s manner, I am unable to agree that he was relaxed and casual. In my view Mr Donnellan was not relaxed in the box, and, rather, although unrelaxed, seemed gratified to be getting this matter heard and decided, even though his evidence made clear the events at his workplace had taken a very substantial personal toll on him. It is not proposed to detail Mr Donnellan’s medical history over the relevant period (which went into evidence at Annexure JD-C to Mr Donnellan’s Statement, Exhibit AP3, paragraphs 41, 42, 45) - it is intensely personal and was available to Counsel for Mr Ozzimo as it related to workers compensation injury and was not gainsaid by any cross-examination.

Flaws in the Investigation Process

[242] The Investigation was said to have proceeded in a flawed way because charges were formulated early in the process and Australia Post then allegedly spent ‘vast resources’ to discredit (whether consciously or subconsciously) the respondents to the Underwood charges, the seven men accused of bullying and harassing Mr Donnellan.

[243] Having closely considered the most detailed Report, while clearly the work of lay enquirers, I am able to discern no basis to conclude that its judgements and consideration are not balanced. While I have not been influenced by the Report’s findings, I cannot conclude it to have been conducted according to a flawed method. Having observed Ms Worldon in the box for a lengthy period I have discerned no sign of illogical partisanship. By this I mean that where the Investigators had formed a view, and Ms Worldon was queried in that regard, there was a basis in logic for the position adopted in the Report. I noted that while Ms Worldon on numerous occasions held to her view, she did make an appropriate concession - against her interests - in acknowledging that in one important respect, the inconsistency as to Mr Donnellan’s post handover speed on 18 January 2010, she now wished a further interview (the eighth) had been arranged with Mr Donnellan

[244] However as stated at the outset this case is not about a review of the Report and instead is about Mr Ozzimo’s application pursuant to s.394. This has meant making findings of fact as to the events complained of by Australia Post. One indication as to the Report’s integrity was that, by and large, all the witnesses in these proceedings acknowledged that their responses to the Investigators had been accurately recorded.

[245] I have concluded for the reasons given that in critical respects Mr Ozzimo’s evidence as to his feelings towards Mr Donnellan cannot be accepted and nor can Mr Ozzimo’s evidence, when his account of events is at odds with the evidence of Mr Cray, Mr Gary Smith and Mr Donnellan.

[246] Australia Post submits that it is significant that the conduct it complains of was found by the Report to have been “done in the context of” bullying behaviour and victimisation ... with a view to retribution for Mr Donnellan’s perceived involvement in action which was, in turn, referable to the incident involving Mr Allan Mercer and Mr Hayes (Exhibit AP18, paragraph 62).

[247] While I am of course well aware of the more general context and the circumstances of the other six Australia Post employees said to have taken active measures against Mr Donnellan, I have not found it necessary to extend my analysis to the broader context. Mr Fenton dealt with this matter, of the difficulties in distilling individual responsibility for group behaviour in the employment context by reference to Murphy v QR Limited (2010) FWA 6930.

[248] I have sought to adopt a rigorous approach, in that I have considered Mr Ozzimo’s conduct only by reference to the events/allegations made against him. The circumstances of the other offences has not influenced my thinking or the basis upon which I have reached the conclusions formed. I have placed some weight on the argument that for an employee to treat Mr Donnellan in such a way (as on 18 January 2010) while that employee was under notice for harassment and bullying is a relevant consideration. It has been included as a relevant matter under the s.387(h) rubric.

[249] I am also conscious that Australia Post advised late in the case that Mr Allan Mercer and Mr Russell Smith had, during the conduct of the case, allegedly shown Underwood employees a document prepared for the Investigators by Mr Donnellan (the ‘hierarchy’ chart), with suggestions to employees it was a ‘hit list’ in relation to which existing Underwood staff were vulnerable. Ms Garner advised that Mr Mercer had been suspended from duty pending inquiries and Mr Russell Smith had resigned from Australia Post. No conclusions or inferences have been drawn from this advice.

[250] Mr Ozzimo in his guarded, untrusting attitude to Mr Donnellan has denied, along with any act against Mr Donnellan, that he participated in an anti-Donnellan affinity group, however subtle or informal its constitution and actions. Even accepting this, at no point has there been any notion from Mr Ozzimo that his actions or work attitude relating to Mr Donnellan were wrong, misguided or based on a misrepresentation of the events of 5 June involving Messrs Hayes, Allan Mercer and Donnellan. Given that there can be no separation of line-haul drivers in Australia Post’s integrated operations there could be zero confidence that Mr Donnellan could expect any future change in attitude or that he could trust Mr Ozzimo.

[251] I have found that on neither Dubbo handover did Mr Ozzimo provide Mr Donnellan as the departing driver with the safety handover which I have accepted is such an important, paid part of the duty of the arriving driver. If workplace safety is to be assured such responsibilities, particularly in vocations such as long-haul truck driving, where Australia Post drivers exchange vehicles unsupervised in parking lots adjacent to the roadside, far from their home bases, and at all hours, must be faithfully carried out and drivers able to depend on each other for a full and accurate safety handover. To knowingly not do so is, in my view, particularly serious - reflecting an employee’s disregard for their basic responsibilities. Mr Ozzimo’s failure at the July 2009 Dubbo handover to perform the post arrival vehicle check is also a failure of significant proportion for similar reasons. The failure in July 2009 to perform the quick hitch reflected in my view, Mr Ozzimo’s determination not to be bound by Australia Post policy when Mr Donnellan was involved. The reason for this was Mr Ozzimo’s dislike for Mr Donnellan and reflected a serious departure from Australia Post policies designed to disadvantage and, with serious potentialities not further speculated upon. One is mindful of the potential for “difficulty” to a departing driver who for some reason remains kept in the dark as to a faulted vehicle.

[252] While I will turn shortly to make the necessary formal s.387 findings, I do wish to add as to the 18 January 2010 handover, that bearing in mind his sole liaison with Underwood, in my view Mr Ozzimo’s conduct in not relaying to Mr Donnellan the information he had as to his close inspection of the vehicle, as to his experience of the fault while on the road, and as to his knowledgeable impression of its likely cause, or taking active measures to ensure that that was done by Mr Russell Smith, reflects a deliberate negligence of his duty of a decidedly egregious kind. As a result of my declining to accept the evidence of Mr Ozzimo in a range of important respects it is necessary to conclude that much of his subsequent response to Australia Post was unreliable.

[253] In considering an application made pursuant to s.394 a member of Fair Work Australia must first decide the matters set out in s.396 and my conclusions in this respect are set out at paragraphs 12 to 16 above.

The s.387 Findings

[254] Set out below are the findings I have made.

[255] In considering whether the termination of an employee’s employment was harsh, unjust or unreasonable it is necessary for Fair Work Australia to take into account the criteria set out within s.387 of the Act and making relevant findings in doing so. Section 387 is set out at paragraph 25 above.

[256] As to s.387(a) I have concluded that there was a valid reason for Australia Post to terminate Mr Ozzimo’s employment and I so find. The valid reason was that in the circumstances outlined above Mr Ozzimo failed to apply or follow the standard Australia Post policy and the developed practice in relation to the handover of vehicles at intermediate locations. On the two occasions in question at Dubbo, Mr Ozzimo did not conduct the handover with the departing driver consistent with vital policy and practice and which handover must be considered an important, paid part of the arriving driver’s duty.

[257] On the first of those occasions in July 2010, I have also found, on the balance of probability, that Mr Ozzimo failed to conduct the safety check of the vehicle and the quick hitch. The safety check of the vehicle, like the handover which it informs, is a paid duty function of the arriving driver and its performance is undertaken solely to assist the departing driver. For these functions not to be performed by an experienced driver, together with the quick hitch, is, as I have found above, to neglect duty in an important way. In my view it does not merely delay and inconvenience the departing driver and represent an illegitimate claim for payment, it can be thought likely to diminish the operational performance and safety of a driver about to undertake, in this case, a lengthy journey. To do so knowingly is very serious and to do so as an act of malice rather than treat their colleague, the departing driver, in a civil fashion constitutes in conjunction with the 18 January 2010 happening, a valid reason for the termination of the employment in question.

[258] The second component which contributes to the s.387(a) finding necessarily made is that relating to the 18 January 2010 Dubbo changeover. The evidence shows Mr Ozzimo, most uncharacteristically, determined to proceed to Dubbo in circumstances where he neglected to advise the truck’s nominated driver, Mr Russell Smith, of the offer of a replacement vehicle, of the availability of a driver to deliver the replacement truck when only a short distance from the Underwood depot.

[259] While not principally concerned with motivation I have been able to conclude, on the balance of probability, that Mr Ozzimo was influenced in a number of these transactions by an implacable intention to neither speak with Mr Donnellan nor to conduct an even minimally cordial and full interaction with Mr Donnellan as is required by the nature of long distance drivers presenting the prime-movers for the oncoming driver at intermediate ports.

[260] Mr Ozzimo managed the events of the day with an approach which, whatever its purpose, had the effect of sidelining Mr Russell Smith so that at an absolute minimum Mr Ozzimo was fully integrated into the procedure adopted in assessing the truck’s condition and controlling the discourse had with Underwood. So involved in all the relevant events was Mr Ozzimo that on any fair minded and practical approach Mr Ozzimo was, at least, jointly responsible with Mr Russell Smith for ensuring Mr Donnellan was fully informed.

[261] Although on 18 January 2010 Mr Ozzimo may have conducted a safety check of the vehicle upon arrival at Dubbo (and to avoid uncertainty I make no finding to this affect) it will be appreciated that unless the full handover discussion is held with the departing driver there is little or no utility in the safety check. It has been noted earlier that silence as to the condition of a vehicle cannot be a substitute for the exchange of information, for the benefit of the departing driver, that is paid for by Australia Post and no doubt relied upon by all drivers.

[262] Again, to avoid uncertainty, it is indicated that I have not concluded that Mr Ozzimo was responsible, in the sense of being culpable, for non-performance of the 18 January quick hitch as, even though I have accepted that passengers share some duties with the designated driver, the quick hitch responsibility, in my view, rested with Mr Russell Smith.

[263] It will be apparent that this case is one where the s.387(a) valid reason relating to an employee’s conduct did have an effect on the safety and welfare of another employee. I am loathe, conscious of Mr Fenton’s submission in this regard, to make a formal finding as to safety - except to note that Mr Ozzimo’s actions on 18 January did nothing to assure the safety of his fellow employee Mr Donnellan. I have found that the animus possessed of Mr Ozzimo and felt toward Mr Donnellan is likely to have affected Mr Donnellan’s welfare by reason of its affect upon his health. As already indicated I have not felt it necessary or desirable to canvass the evidence given in this regard, including that of medical practitioners and relative to workplace injury. It is sufficient to say that Mr Donnellan has paid a high personal price for the actions of Mr Ozzimo. I have accepted, as is made clear in the findings above, the evidence of Mr Gary Smith, the CEPU shop steward, as to Mr Ozzimo’s attitude toward Mr Donnellan, Mr Ozzimo’s determination to have no dealings with Mr Donnellan and that, in Mr Gary Smith’s authoritative view, Mr Ozzimo’s belief as to Mr Donnellan’s role in the original problem involving Mr Allan Mercer and Mr Hayes was substantially ill-informed and wrongheaded.

[264] As to s.387(b), whether the person was notified of the reason, I have found that Mr Ozzimo was notified of the reason and, as to s.387(c), was given an opportunity to respond to any reason related to his conduct, this not being a performance centred case. This opportunity was afforded by the various pieces of correspondence detailed earlier, by the Investigators and by Mr Wilson.

[265] In relation to s.387(d) I find there was no unreasonable refusal by Australia Post to allow Mr Ozzimo to have a support person present on the relevant occasions. I have noted that Mr Ozzimo, himself a shop steward, was assisted by an official of the Transport Workers Union.

[266] As to s.387(e) Mr Ozzimo had not been warned in relation to unsatisfactory performance in any relevant sense.

[267] Section 387(f) relates to the size of the employer as affecting the procedure followed. Australia Post is a large employer and no complaint is made on a procedural ground which relates to size. The Applicant’s case did assert that the Investigators had overlooked contrary indicators, by formulating “charges very early in the procedures and subconsciously or otherwise spent vast resources trying to discredit the respondents, whilst ignoring issues that suggested Mr Donnellan was lying” and having come to a view as to Mr Ozzimo’s participation in bullying of Mr Donnellan. I have had regard for this argument in forming my views.

[268] Section 387(g) relating to human resource specialists’ absence is not activated in this case given there were such specialists involved.

[269] As to s.387(h) I have sought to identify within the body of the decision the operative considerations influencing the approach adopted and the findings made. I have also considered as relevant Mr Ozzimo’s long service with Australia Post unaffected by other than minor issues which do not form part of the Respondent’s case. I have noted that a modest ex-gratia payment was made to Mr Ozzimo and that he took up employment in not dissimilar work at broadly equivalent pay about four weeks after the termination. Also relevant to s.387(h) is the fact that according to the written final submissions (Exhibit O7, at paragraph 64) Mr Ozzimo’s alternative employment since April 2011 as a casual long-distance driver involves many overnights, a less favourable superannuation plan, travel allowance and roster instability.

[270] Consideration has also been given to the argument pressed by Mr Fenton that timely and decisive managerial action may have resolved Mr Donnellan’s complaints, an issue also taken up, somewhat cautiously, in the Report. While this may (speculatively) be so, it cannot be an effective and complete answer to activities that have actually occurred as between mature age employees in the unsupervised handovers and in the depots, unless there be evidence of a wholesale abdication of management responsibility to properly oversee the workforce. I have not concluded that that was the position at Underwood and, rather, that the workforce was supervised, but employees performing such responsible work away from the workplace had been trusted to conduct themselves properly. It should be apparent however there is no benefit accruing to any party if a blind eye is turned by anyone on recurring personality issues and grievances not dealt with at an early stage.

[271] Australia Post submitted, relative to the other employees caught up in the allegations that Mr Ozzimo’s treatment by it reflected proportionate disciplinary action consistent with the Report. Each case was said to have been considered on its merits and Mr Ozzimo was not the only person involved in the bullying/harassment investigation for whom dismissal was recommended. The other employee was said to have resigned prior to the dismissal being effected. I have concluded, in the absence of any submission to the contrary that there is no relevant disparity of treatment aspect which bears on the case.

[272] As a consequence of all these considerations I have concluded that the termination of Mr Ozzimo’s employment was not harsh, unjust or unreasonable and that, accordingly, the application must be dismissed.

[273] An order to that effect is found in PR516682 dated 30 November 2011.

COMMISSIONER

Appearances:

J Fenton of Counsel, S Keating, M Young and S Lavarch for the Applicant.

K Garner of Counsel with S Hodgers, A Talbot and P Sparrow for the Respondent.

Hearing details:

2011.
Brisbane:
March 15.
Melbourne/Brisbane (video hearing):
April 13.
Melbourne/Brisbane (video hearing):
May 6.
Brisbane:
May 9, 10, 11.
Brisbane:
June 22, 23, 24, 30.

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