Georgeson v Alstom Transport Australia Pty Ltd

[2023] FedCFamC2G 293

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Georgeson v Alstom Transport Australia Pty Ltd [2023] FedCFamC2G 293

File number(s):	BRG 67 of 2022
Judgment of:	JUDGE VASTA
Date of judgment:	10 March 2023
Catchwords:	INDUSTRIAL LAW –disciplinary proceedings – interpretation of Enterprise Bargaining Agreement (“EBA”) – whether actions of the employer breached the EBA – application dismissed.
Legislation:	Fair Work Act 2009 (Cth): s 50, s 545(2)(b)
Division:	Division 2 General Federal Law
Number of paragraphs:	24
Date of last submission/s:	10 March 2023
Date of hearing:	10 March 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Zielinkski
Solicitor for the Applicant:	Wotton & Kearney Lawyers
Counsel for the Respondents:	Mr Blattman KC
Solicitor for the Respondents:	Ashurst Australia

ORDERS

BRG 67 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

PATRICK GEORGESON

Applicant

AND:

ALSTOM TRANSPORT AUSTRALIA PTY LIMITED ACN 165 157 451

First Respondent

JOHN THOMSEN

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	10 MARCH 2023

THE COURT ORDERS THAT:

1.The application filed on 18 February 2022 be dismissed.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 18 February 2022 the applicant, Patrick Georgeson, filed an originating application in this Court seeking declarations that the first respondent, Alstom Transport Australia Proprietary Limited, which has previously been known by another name of Bombardier Transportation, had contravened s 50 of the Fair Work Act 2009 (Cth) (“the FW Act”) by breaching a clause of an enterprise bargaining agreement. The applicant has also sought an order for pecuniary penalties for that contravention and an order asking for compensation pursuant to s 545(2)(b) of the FW Act that arose from the contravention, plus interest.

2. On 7 November 2022 when the matter was before me, both Counsel said that they were content for this matter to proceed as a liability only hearing and if it were that liability had been proven, then a further hearing could be scheduled on the matters of quantum of compensation and pecuniary penalties. It stands to reason, if liability were not established, that this would be the end of the matter.  This was a very cost-efficient way of dealing with the matter because the hearing today has lasted about two hours, but that is not to say that the subject matter of the hearing was not extremely difficult and complex.

3. The factual matrix of the matter is that the applicant, Mr Georgeson, was an employee of the first respondent and he had been an employee for quite some time; at least since April 2018.  He was employed as a team leader.  A team leader has a number of subordinate officers who report to them. 

4. What had occurred was that the first respondent, itself, started to conduct, as it were, listening tours of the employees.  The first respondent ensured that the employees were able to talk about both their subordinates and their superiors in giving feedback to the company. 

5. It would seem that, as a result of those matters, one of the superiors of the applicant, a Mr Thomsen, telephoned the applicant on a rostered day off and told him that there were issues that had arisen.  He told the applicant that a letter was being written to him and sent by email, but also told the applicant that he had to attend a meeting the next day, which was to be 17 November 2021, at a place that was different to that that he would usually work at. 

6. The letter, which is annexed to both the affidavit of the applicant and of the person, Mr Thomsen, is dated 15 November 2021.  The letter is reproduced below

   Dear Patrick

   Workplace Concerns

   Over the past two months, members of the ONGR Project Leadership Team have conducted listening sessions across the mobile outstations workgroup. These sessions were conducted in response to concerns raised by Individual employees. The purpose was to directly hear from technician's and explore the validity of concerns raised.

   Following a review of all information gathered during the process, specific concerns were raised In relation to your conduct as Team Leader. It is alleged your conduct does not align with Code of Ethics, specifically: (emphasis added)

   •     Promoting a healthy and sustainable workplace

   Harassment

   Bombardier is committed to providing a healthy and sustainable workplace that's free from harassment, including all forms of sexual, physical and psychological abuse. As an employee, you're entitled to-and expected to uphold-a-positive, harmonious and professional work environment.

   •Acting with professionalism in our communications

   Communications with others

   You should be truthful, straightforward and ethical in your dealings w11h others, and never intentionally mislead colleagues or third parties interacting with Bombardier. All employees are expected to behave with others in a respectful and professional manner by using appropriate/ professional language, both in written and verbal communications.

   You are required to attend an investigation meeting with myself and Mr Chris Hagstrom at the Wulkuraka Maintenance Facility on Wednesday 17 November 2021 at 09:00am to respond to these allegations.

   At this meeting, you have the right to have a support person nominated by you. The role of this person is to provide you with emotional support if required but is not to act as an advocate.

   Although the Company will not form a view until after meeting with you, you should be aware it regards the allegations as serious which may result in disciplinary action up to and including termination. (emphasis added)

   You are also advised this investigation is confidential, and you are directed not to discuss it with anyone in the workplace, except if they are acting as your support person through this investigation process.

   I appreciate this is a difficult and stressful situation and if you would like to contact the Company's Employee Assistance Programme for support, you can do so knowing the confidentiality of that service will always be respected. This service is available to you by contacting the following number 1800 8187 28 or [phone].

   Your sincerely

   John Thomsen

7. In short compass, the applicant asked for that meeting to be postponed so that he could ready himself somewhat better, but wanted it postponed only for a short time.    The respondent made inquiries of the support person of the applicant and found that that person would not be available until 24 November, and so postponed the meeting until 24 November.  The applicant did ask for particulars of the allegations to be given to him.

8. The first respondent advised the applicant that they would not give details of the allegations to him, but would make them known during the meeting.  The applicant provided a medical certificate and the meeting did not happen. 

9. He is on Workers Compensation payments at the moment because he says he has a mental health issue regarding these actions by the employer. Nothing further has happened with regard to the employment other than the issuing of the application on 18 February 2022 and the subsequent filings therein.

10. All parties have agreed that the applicant’s employment is covered by the enterprise bargaining agreement named for the company, and specifically cl 14.3.  Clause 14.3 is headed Disciplinary Procedure. 

    The clause is reproduced below

    14.3 Disciplinary Procedure

    (a) Disciplinary measures are implemented within the context of an overall performance management approach. Employees will at all times be accorded procedural fairness and if the employee so chooses a representative which may include a union delegate or official.

    (b) Before implementing disciplinary measures, the employer will:

    (i) gather and analyse any material relevant to the performance issue subject to the disciplinary measures and give the employee a copy;

    (ii) advise the employee of the allegation(s) of inappropriate performance or behaviour in writing; and

    (iii) provide the employee with an opportunity to respond to any allegation(s).

    (emphasis added)

    (c) During the investigation described above, the employer may stand the employee down, with pay, during part of all of the investigation.

    (d) In implementing disciplinary action, if any, the employer may:

    (i) issue a verbal or written caution, warning or reprimand; or

    (ii) impose a temporary reduction in position or classification level and/or pay (for a period of up to twelve (12) months which may include a written caution or warning; or

    (iii) dismiss the employee.

    (e) Except for a termination, an employee who has a grievance in relation to the application of this clause shall follow the Dispute Resolution Procedure outlined in clause 18.3 of this agreement.

11. The applicant has alleged that a proper construction of this clause would have that the employer contravened this section by:-

    ·writing the letter that required the applicant to attend the meeting;

    ·alleging in that letter that the applicant’s conduct did not align with the first respondent’s code of ethics;

    ·telling the applicant that he was required to attend a meeting with Mr Thomsen and Mr Hagstrom in order to respond to the allegations;

    ·stating that the allegations were serious and may result in disciplinary action taken against the applicant up to and including termination; and   

    ·writing that the details of the allegations would not be provided to the applicant until that meeting. 

12. The clear source of conflict between the applicant and the respondent on this question is what constitutes disciplinary measures.  The applicant has submitted that the disciplinary measures were threefold: the actual letter; the company’s proposals that the applicant meet with the respondent’s representatives to respond to the letter; and, the meeting itself, which ultimately did not take place. 

13. The applicant alleges that these were disciplinary measures, given that they were part of a broader disciplinary process that could potentially give rise to the company taking disciplinary action against him.

14. It is then for the Court to consider what do the words “disciplinary measures” mean within that clause itself.  The applicant’s argument is that the respondent company was compelled to give the applicant the allegations in writing and provide him with an opportunity to respond to those allegations before they could implement disciplinary measures.  The fact that they did not do that and simply asked him to come to the meeting, and wrote the letter and told him that this was a process that could end up in termination, showed that they were definitely in breach of that clause.

15. However, one must look very closely at cl 14.3(b).  The argument of the applicant would lead to that clause being an absurdity if those arguments were accepted.  If it is that advising an employee of the allegations in writing and providing the employee with an opportunity to respond to any allegations are disciplinary measures, then “(b)” makes no sense at all. 

16. This is because “(b)” starts with the words, “Before implementing disciplinary measures, the employer will do (i), (ii) and (iii).”  However, if “(ii)” and “(iii)” are disciplinary measures in, and of, themselves, there is then a circulatory argument.  If they are disciplinary measures, they cannot be implemented until they are actually made to occur, but they cannot be made to occur because they must be done before they are implemented.  It is simply does not make sense.

17. The only way to properly interpret “(b)” without creating an absurdity is to understand that the clause itself regards the actions in (i), (ii) and (iii) to not be disciplinary measures.  Those actions must be implemented and done before the employer can implement disciplinary measures. 

18. That interpretation then gives sense to cl 14.3(a) and 14.3(c), because one may very well argue that having an employer standing an employee down with pay during the investigation is still a disciplinary measure. But it would seem by enacting (c), the clause excises such a disciplinary measure from the measures that cannot be taken until (i), (ii) and (iii) are done.

19. After there has been a finding, from an investigation that has been properly conducted according to procedural fairness, it is only then that disciplinary measures can be implemented and the more narrow disciplinary actions that are contemplated in cl 14.3(d) can then be committed.  Clause 14.3(e) provides avenues of redress from someone who is aggrieved by this process. 

20. It seems to me that that is the only way to make sense of the clause itself.  Having come to that decision, one must then look at what the respondent has done. 

21. The respondent has simply invited the applicant to sit down and hear the allegations.  It has invited him to respond.  It has not implemented any disciplinary measures.  If it has not implemented any disciplinary measures, then it cannot be in breach of cl 14.3 of the enterprise bargaining agreement.

22. During the course of the trial, and particularly the submissions made by Counsel and the exchange between Bench and Bar, there were a number of examples that were, as it were, used to test the various submissions.  I do not need to go through those in these reasons, but it would seem that the examples that were given during those exchanges could only have the proper resolution if it were that the Court’s interpretation of cl 14.3 is the correct one. 

23. Having come to that decision (that this is the correct interpretation), the application filed by the applicant on 18 February 2022 cannot succeed. 

24. I therefore dismiss the application.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       20 April 2023